INFORMATION SHARING IN
CARTEL
by
Thula Kaira - CEO
Presentation to the ICN 2012 Cartel Wokshop - Mini Plenary 4 on
Information Exchange
Panama, Panama City
2 – 4 October 2012
PRESENTATION OUTLINE
1. Introduction
2. Botswana’s Legal Framework on
Information Sharing
3. Regional agreements on
information sharing
4. Botswana’s information sharing
experiences
5. Hypothetical Case Application
6. Challenges
1. INTRODUCTION
 Information sharing has been a common feature
in other matters of regional trade arrangements
such as non-tariff & tariff related barriers
 With regional/multilateral trading system comes
along cross-border and global cartel activity too
 Information sharing in competition is critical for:
 Cartel detection
 Cartel Investigation
 Cartel prosecution
 Sending a unified anti-trust voice to cartelists
2. BOTSWANA’S LEGAL BASE ON
INFORMATION SHARING
• Under Section 77 of the Competition
Act, the Competition Authority may
investigate any matter falling within
the scope of this Act and make an
appropriate determination of the case
where a competition authority duly
constituted in another State so
requests and where that authority
proves to the Authority that there are
reasonable grounds to believe that
anticompetitive practices in Botswana
are damaging competition in the other
State.
• The foregoing applies where Botswana
has entered into an agreement with that
State to the effect that, on a basis of
reciprocity, each party to the agreement
will exercise the principle of comity in
investigating and determining cases
falling within its jurisdiction at the
request of the other party.
• Section 77 presupposes a the “entering
of an agreement” and on a “basis of
reciprocity”
• This provides a formalised way of info
sharing, but does not necessarily forbid
informal methods
• CONFIDENTIAL INFORMATION can still be
shared
• Under Section 74, while a Commissioner,
Authority staff, or adhoc inspector can not
disclose confidential information that has
been obtained under the Act while the
business continues to be carried on or
during the lifetime of the individual, info
disclosure can be made if info is:
• already in the public domain;
• made to the competition authority of
another country in connection with a
request by that country for assistance in
terms of a formal agreement (section 77).
3. REGIONAL ARRANGEMENTS IN
COMPETITION POLICY COOPERATION
Two aspects of
cooperation
seem to have
emerged in
Africa, like
elsewhere both at
bilateral or
multilateral
levels:
• Informal/non-binding
information exchanges
• Formal/binding
information exchanges
7
Crossborder
necessities
Southern &
Eastern Africa
Competition
Forum
Africa
Competition
Forum
Collegialbased
INFORMAL
8
FORMAL
• Bilateral Trade Agreements
(Botswana – Mozambique; Bots
– S/Africa; Bots - Zimbabwe)
• SADC Heads of State
Declaration on Cooperation on
Competition...
• COMESA
• East African Community
• Tripartite Customs Union
(COMESA/SADC/EAC)
• WEAMU
• EPAs with EU
9
SADC DECLARATION ON REGIONAL COOPERATION IN
COMPETITION AND CONSUMER POLICIES
WE, the Heads of State…Hereby declare that… [Effective
Cooperation - Paragraph 1 (e), (f), (h]
• Cooperation shall be enhanced by establishing a transparent
framework that contains appropriate safeguards to protect the
confidential information of the parties and appropriate national
judicial review;
• Member States shall have regard to comity' principles, including
positive comity, as an instrument of regional and bilateral
cooperation within the region, including informal positive comity
referrals among competition enforcement authorities;
• Member States shall review those provisions in their laws that stand
in the way of these cooperative efforts and explore areas where
they are prepared to enter into binding agreements
10
4. BOTWANA’S INFO SHARING
EXPERIENCES
 The Competition Authority in Botswana has
been in existence since April 2011 but has
learnt well from its more advanced
neighbouring and other overseas
competition authorities
 While our Competition Act call for more
formal cooperation, most of the cooperation
has actually occurred informally, as the
diagram below shows:
11
INFORMAL
• Request to Namibia on a catering
cartel
• Request to South Africa on wheat,
medical sector
• Request to Zambia: car-repair industry
• Voluntary disclosures
FORMAL
• SADC Competition Committee setting up a
regional Case database
• Formal Agreements yet to be signed but in
effect have not substantially affected
cooperation
12
5. HYPOTHETICAL CASE APPLICATION




Under our Act, «Confidential
Information» has not been defined so it
would be a case-by-case determination
We currently have no leniency policy
but would, in principle, use the SADC
Guidance Note on Leniency Programs
Where there is a formal agreement (I
believe BTAs, SADC would suffice) we
would provide the relevant info about
the leniency application by CropPro to
S/Africa, Nambia, Tanzania, Zambia,etc
Reciprocity would play a major role
13
6. CHALLENGES








Varied definitions of confidential information
Unreasonable administrative interpretation/
understanding of confidential information
Timeliness of information submission when
requested
Submission of unhelpful, public domain
information
Lack of passion for information sharing
Bureaucratic hurdles as may arise
«Negative reciprocity»
Difficult to cooperate where there has been
no previous experience of cooperation/
familiarity
14
THANK YOU…
FOR FURTHER INFORMATION:
Thula Kaira - CEO
Competition Authority
Plot 50664, Fairgrounds
Private Bag 00101
Gaborone, BOTSWANA
Tel: +267 393 4278
Fax: +267 312 1013
EMAILS: Thula.Kaira@competitionauthority.co.bw
CA@competitionauthority.co.bw
WEBSITE: www.competitionauthority.co.bw
FACEBOOK: Competition Authority – Botswana
TWITTER: CompetitionBots