Trade and Private Sector Development Programme (TPSDP) A programme funded by the European Union

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1 Trade and Private Sector Development Programme (TPSDP) A programme funded by the European Union TPSDP 3.2.8: S Integrating Competition Law into The LLM Curriculum of Universities in Zimbabwe 7-15 April 2016, Rainbow Towers Hotel, Harare UNCTAD conducted the voluntary peer review of Zimbabwe in The Peer Review Report includes some recommendations to reform and strengthen the competition regime and reinforcing the competition culture in Zimbabwe. In this regard, under a European Union (EU) funded Trade and Private Sector Development Programme aiming at supporting economic recovery and diversification, and poverty reduction in Zimbabwe, UNCTAD started to implement competition law and policy related activities in 2014 in order to implement the peer review recommendations. The inclusion of competition law courses into the curriculum of universities in Zimbabwe is an important element in creating a competition culture as well as developing human capital for an effective competition regime. In this respect, UNCTAD is organizing a training course at the University of Zimbabwe in Harare between 7 and 15 April The course is developed by a UNCTAD Consultant in consultation with the Faculty of Law at the University of Zimbabwe. The aim of this course is to build upon the awareness and knowledge of Competition Law and Policy in Zimbabwe by equipping Graduate Law Students of the University of Zimbabwe (LLM students) with relevant tools for an effective enforcement of competition law and policy. Contents of the Training of course on Competition Law and Policy Programme Objective: The development of workshop materials and the delivery of a course in competition law and policy is, in part, a fulfilment of the University of Zimbabwe s social and educational obligation to deliver dedicated and trained human resource in the field of competition law and policy, to build awareness of competition law within the legal fraternity and business community, and also to fulfil the University s role as advocates of a full-functioning and legally sound competition law enforcement regime in Zimbabwe. Subject and Inquiry Based Curriculum: This curriculum is subject-based and inquiry/problem-focused in that it will focus on the core principles of competition law and economics and at the same time will address some of the problems or areas of inquiry and concern in the context of competition law analysis, practice and procedure.

2 Outcome Sought: Each year the University seeks out the delivery of a course in competition law which can (i) ensure knowledge and skill-sets in competition law practice are transferred, answering to the need for fresh legal minds that can staff private sector businesses, government agencies, law firms, etc. in Zimbabwe and (ii) be a forum which facilitates discussion and debate to build awareness and further spur advances and upgrades for an ever more effective competition law enforcement system in Zimbabwe. This year the University of Zimbabwe intends that the delivery of this Curriculum will result in the training of at least 20 Post Graduates in competition law and practice and will generate critical debate in the legal fraternity and business community that can spur upgrades for a more effective competition law enforcement regime in Zimbabwe. The curriculum will focus on: teaching high-level knowledge of the key legal principles that underpin competition law case analysis; encouraging thinking and understanding on the tools/theories of micro-economics that can help to create practical understanding of how a competitive market works; highlighting the key institutions in competition law enforcement and build-up of knowledge of international best practice; transferring skill-sets in critically reviewing legislation, case law, using comparative law assessments to ascertain the value of competition law precedents from other jurisdictions; and reaching a definitive conclusion on what competition law and policy is intended to do for Zimbabwe and the region. Mrs. Elizabeth Gachuiri, the Project Officer, Mr. Yves Kenfack, Economic Affairs Officer from UNCTAD and Ms. Kamisha Menns will participate in this activity and facilitate the discussions

3 WORK PROGRAMME Day 1: 7 April 2016 UNIT 1: Legal and Economic Concepts and Theories: Analytical Toolkit for Assessing Competition Law Cases 9am to 9.30 am: Ceremony and Introduction - Law, Concepts, and Analysis Micro-economics constitute the closest sibling to competition law, and competition regulators and lawyers are able to assess any infringing conduct by using a good number of principles that rests on the principles of micro-economics and/or industrial organisation: for example, dominance is understood if a reader understands market power, market structures and monopoly theory. This Unit equips the reader with an understanding of the principles that are used to analyse competition law cases. Firms, Consumers and Market Structure Competition, Monopoly and Efficiency The Theory and Goal of Competition Policy The Subjects of Competition Law The Relevant Market Market Power Market Share Market Concentration Buyer Power Barriers to Entry UNIT 2: Three Main Rules of Competition Day 2: 8 April 2016 Generally speaking, the rules of competition are designed to directly regulate the conduct of firms on the market. Competition law and policy gives us easy guidance as to which activities have proven over time to retard competition in a domestic market or in a single, integrated market. The law does this by focusing on three categories of anticompetitive practices. All substantive legal rules of competition law relate to either one of three prohibited categories of anticompetitive conduct. These three categories of prohibited conduct are addressed in this Unit. Abuse of Dominance Anticompetitive Agreements Anticompetitive Mergers

4 Day 3: 11 April 2016 UNIT 3: Institutions and Procedures in Competition Law The legal system of the Zimbabwe together with its Constitution, established rules of criminal and civil procedure and its general laws and legal system are to be the acknowledged setting which directs/guides the interpretation of the Competition Act of Zimbabwe and any subsequent subsidiary /secondary regulation which are designed in furtherance of the Competition Act. This Unit explores the various legal rules that must be observed in competition enforcement to observe fundamental rights conferred under the Constitution of Zimbabwe. The Role of Administrative Law and Constitution in Competition Law Proceedings Criminal and Civil Procedure in Competition Law Enforcement: Due Process, Natural Justice, Separation of Powers, Leniency/Compounding of an Offence, Burden of Proof, Quantum of Evidence, Civil Penalties and Criminal Remedies Appropriate Enforcement Agency Design and Structuring Competition Case Appeal and the Role of the Judiciary Community Competition Authorities International Cooperation Agencies: OECD, UNCTAD, ICN, CUTS UNIT 4: Distribution Systems in Competition Law Day 4: 12 April 2016 Resale price maintenance, other pricing and non-pricing restraints imposed on customers and suppliers, refusals to deal, the requirements for establishing an actionable agreement, distributional restraints imposed by joint ventures, "hub and spoke" conspiracies, exclusive dealing and tying arrangements, bundled discounts, most favoured nation and "anti-steering" provisions, loyalty and market share discounts, slotting allowances, category management, discriminatory pricing and promotional practices, and dual distribution issues are all topics relevant to an economy that wants to enlarge its manufacturing and consumer goods sectors. This Unit will generate an understanding of how distribution systems can hinder or enhance competition in a market to the detriment or benefit of the end consumer. Distribution Agreements Intrabrand and Interbrand Competition Exclusive/ Selective Distribution Systems Franchising and Agency

5 Day 5: 13 April 2016 UNIT 5: Private Litigation in Competition Law: Class Action Suits Private antitrust lawsuits brought by customers of the airfreight industry, both individuals and businesses, have been filed alleging a global conspiracy to fix prices for fuel, security and insurance surcharges in international air cargo shipping. These types of suits are usually brought against multinational companies operating on new fewer than two continents. Those cases have resulted in the payment of huge awards of damages. This Unit looks at private damage actions, the finding of an infringement, and the calculation of damages. Private Enforcement Complements Public Enforcement Locus Standi/Standing and Procedure Extraterritoriality Sanctions in Private Enforcement UNIT 6: Regional Integration and Competition Law Day 6: 14 April am to 1.00 pm: Law, Concepts, and Analysis More and more countries feeling the pressure of globalisation and the advent of the electronic/internet age see a need to create greater local and regional administrative and regulatory initiatives for liberalising trade in goods and services. Developing countries welcomed the framework of WTO but now realise that even greater benefits can be had from trading closer to home and building trade and integration alliances among neighbours. This Unit examines the role of competition law from the perspective of regionally integrated countries. Source of Law: Treaty Law and Community Law, Impact on Regional Integration COMESA and SADC The Free Movement Principle and Fostering of Competition Motives behind the Single Market and Economy Imperative

6 Day 7: 15 April 2016 UNIT 7: Comparative Competition Law 9.00 am to 1.00 pm: Law, Concepts, and Analysis This is an analytical appraisal of various competition law systems, tracking similarities and differences in agency structure, legal systems and the type of substance and procedure they prompt under competition legislation; the role of various international organisations, the significance of multinational enterprises, the extensive territorial reach of the US and EU competition laws; and the circular logic/argument of whether policy influences rule-making in competition law and how rule-making premised on international best practice may thwart local policy. Globalisation/Regional Integration and Competition Law Legislative Summaries and Background: US, EU, South Africa, Barbados, Zimbabwe, Canada The Rule of Reason and Per Se Rule versus Effects and Object Analysis Intent/Mental Element in Competition Legislation Extraterritoriality and Multinational Companies Intersection of Competition Law and WTO Law