Competition Law and Sector Regulation - Competition Law - Lecture Slides, Slides of Competition Law and Policy

Download Competition Law and Sector Regulation - Competition Law - Lecture Slides and more Slides Competition Law and Policy in PDF only on Docsity! 1 Competition Law and Sector Regulation Docsity.com COMPETITION LAW • GHANA COMPETITION LAW INTER ALIA SEEKS TO MAINTAIN AND PROMOTE FAIR AND FREE COMPETITION IN THE MARKET • IT ALSO SEEKS TO PROTECT THE WELFARE AND INTERESTS OF CONSUMERS • THE LAW APPLIES NOT ONLY TO PRIVATE ENTERPRISES BUT ALSO TO GOVERNMENT DEPARTMENTS AND PUBLIC ENTERPRISES 2 Docsity.com TELECOM AND ELECTRICITY • IN ELECTRICITY SECTOR GENERATION AND RETAIL ARE NOW COMPETITIVE AND SUBJECT TO COMPETITION LAW • TRANSMISSION AND DISTRIBUTION CONTINUE AS NATURAL MONOPOLY, REQUIRING REGULATION • IN TELECOM SECTOR THE LAST SEGMENT - CONNECTION TO THE CONSUMER IS NO LONGER A NATURAL MONOPOLY - WIRELESS ON THE LOCAL LOOP, FIBRE OPTIC, INTERNET, CABLE, CABLE TELEVISION, CELLULAR AND SATELLITE • THUS THE SECTORAL REGULATOR’S ROLE IS TO FACILITATE COMPETITION - ENTRY TO THE COMPETITIVE PARTS OF THE SECTOR RETAINING THE NATURAL MONOPOLY COMPONENT ABSENT COMPETITION 5 Docsity.com BLOOD PRESSURE IN TELECOM AND ELECTRICITY SECTORS • IN BOTH THESE SECTORS ACCESS TO ESSENTIAL FACILITIES AND INTERCONNECTION FOR THIRD PARTIES IS CRITICAL • SECTORAL LAW SEEKS TO ENSURE FREE AND NON – DISCRIMINATORY ACCESS TO SUCH FACILITIES • IN SOME REGIMES LIKE NEW ZEALAND, COMPETITION LAW PROHIBITS MISUSE OF DOMINANT POSITION OR BEHAVIOUR • BATTLE FOR PRIMACY BETWEEN SECTORAL LAW AND COMPETITION LAW INCREASES THE BP IN THE TWO SECTORS 6 Docsity.com DIFFERENCES COMPETITION LAW  COMPETITION AUTHORITY ASSESSES LAWFULNESS OF CONDUCT  IT HAS POWER TO PROSCRIBE CONDUCT  PRIVATE PARTIES PLAY A BIG ROLE BY BRINGING IN COMPETITION ISSUES BEFORE THE AUTHORITY FOR MODIFYING CONDUCT  INVESTIGATION AND PROCUTION ARE SEPARATE  REQUIRES HIGH BURDEN OF PROOF SECTORAL REGULATOR  SECTORAL REGULATOR HAS DISCRETIONARY POWERS EX ANTE  IT HAS POWER TO SET PRICES, STANDARDS ETC  PRIVATE PARTIES PLAY AN USEFUL ROLE ASSISTING THE REGULATOR IN EX ANTE DECISIONS  REGULATOR CONDUCTS HEARINGS AND ADJUDICATES ON THEIR OUTCOME  REQUIRES LOGIC RATHER THAN PROOF FOR MAKING DECISIONS EX ANTE 7 Docsity.com YES, WE CAN MAKE THEM SHAKE HANDS ALLOWING PRIMACY TO SECTORAL REGULATOR ON COMPETITION ISSUES IN THE REGULATED SECTOR OR REQUIRING SECTORAL REGULATOR TO REFER COMPETITION ISSUES TO COMPETITION AUTHORITY ALLOWING CONCURRENT JURISDICTION OR REQUIRING CONSULTATION CREATING A SINGLE AGENCY FOR COMPETITION AND SECTORAL REGULATION (EXAMPLE: AUSTRALIA, NEW ZEALAND, BARBADOS ETC.) 10 Docsity.com SECTORAL REGULATOR HAS PRIMACY • SECTORAL REGULATION ACTS TO BE EXEMPT FROM COMPETITION LAW • ALL REGULATED INDUSTRY WILL ARGUE THAT THEY ARE NOT WITHIN THE AMBIT OF COMPETITION LAW • THIS WILL IMPLY INCONSISTENCY IN DECISIONS OF DIFFERENT SECTORAL REGULATORS ON COMPETITION MATTERS 11 Docsity.com COMPETITION LAW HAS PRIMACY • SECTORAL REGULATORS REFER COMPETITION MATTERS TO COMPETITION AUTHORITY • THIS WILL ENSURE CONSISTENCY OF DECISIONS IN COMPETITION MATTERS ACROSS ALL INDUSTRY • THIS WILL ENSURE THAT THE EXPERTS IN COMPETITION MATTERS HAVE THE FINAL SAY • BUT IN THIS ARRANGEMENT THERE COULD BE DELAYS BECAUSE OF REFERRALS 12 Docsity.com GHANA BILL • SECTION 76 OF THE BILL ENJOINS THE SECTORAL REGULATOR TO NEGOTIATE AN AGREEMENT WITH THE COMPETITION AND FAIR TRADE PRACTICES COMMISSION TO COORDINATE AND HARMONISE ITS EXERCISE OF JURISDICTION OVER COMPETITION MATTERS WITHIN THE SECTOR SPECIFIC INDUSTRY • THIS IS TO ENSURE CONSISTENT APPLICATION OF THE COMPETITION LAW OF GHANA 15 Docsity.com IMPLICATIONS • SECTORAL REGULATOR HAS TO EXERCISE ITS JURISDICTION IN TERMS OF THE AGREEMENT NEGOTIATED WITH THE COMPETITION AND FAIR TRADE PRACTICES COMMISSION • THE AGREEMENT MUST 1. IDENTIFY AND ESTABLISH PROCEDURES FOR CONCURRENT JURISDICTION 2. PROMOTE COOPERATION BETWEEN THE SECTORAL REGULATOR AND COMPETITION AUTHORITY 3. PROVIDE FOR EXCHANGE OF INFORMATION AND PROTECTION OF CONFIDENTIAL INFORMATION 16 Docsity.com SUGGESTION • GHANA GOVERNMENT AND STAKEHOLDERS NEED TO CONSIDER THE IMPLICATIONS OF SECTION 76 OF THE BILL TO ENSURE THAT IT IS IN CONSONANCE WITH ITS NEEDS AND ETHOS • COORDINATION, CONSULTATION AND HARMONISATION ARE THE FULCRUM OF SECTION 76 AND APPEAR TO BE APPROPRIATE 17 Docsity.com