Canadian COMPETITION LAW

I am pleased to be delivering the Competition Law and REALTORS compliance course for members of the Fraser Valley Real Estate Board on Thursday August 16^th.  From the Alliance for Canadian Real Estate Education (ACRE):

“Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law.  While Canadian competition law applies to all real estate professionals, this course was designed specifically for REALTORS®.  This course provides an overview in plain language of Canadian competition law and practical compliance guidelines to assist REALTORS® in complying with Canadian competition law and a number of illustrative case studies.”

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In anticipation of its upcoming fall Canada in the Pacific Century Conference, the Canadian Council of Chief Executives (CCCE) is publishing a series of Asia investment related papers:

“As part of the Canada in the Pacific Century initiative, the CCCE will publish a series of papers in 2012 dealing with a wide range of issues in the Canada/Asia relationship.”

The CCCE has published the most recent paper in this series by Graham Orpwood, entitled “Competing in the 21^st Century Skills Race” – see: Canada in the Pacific Century – Papers

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I am pleased to be delivering the Competition Law and REALTORS course for the Real Estate Board of Greater Vancouver on August 29, 2012.  This course has been designed by the Alliance for Canadian Real Estate Education (ACRE) in conjunction with The Canadian Real Estate Association (CREA).

From ACRE:

“Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law.  While Canadian competition law applies to all real estate professionals, this course was designed specifically for REALTORS®.  This course provides an overview in plain language of Canadian competition law and practical compliance guidelines to assist REALTORS® in complying with Canadian competition law and a number of illustrative case studies.”

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With the Maple/TMX and Glencore/Viterra deals beginning to quiet down now, the next Competition Act / Investment Canada Act approval dance began earlier today with announcements that China National Offshore Oil Corporation (“CNOOC”) was proposing to acquire Nexen Inc. in a friendly $15.1 billion all cash transaction ($27.50 per Nexen share).  Nexen has assets in Western Canada, the U.K. North Sea, Gulf of Mexico and offshore Nigeria, including oil and gas, oil sands and shale gas production.

Canada’s Industry Minister, the Honourable Christian Paradis, confirmed that the transaction would be subject to Investment Canada Act (“ICA”) review (see: Minister Paradis Confirms China National Offshore Oil Corporation and Nexen Inc. Transaction is Subject to Review under the Investment Canada Act) and made a number of rather pro forma statements, including confirming that the transaction exceeded the WTO review threshold and setting out the net benefit to Canada criteria under the ICA.  The Minister also confirmed that the Competition Bureau would be reviewing the proposed transaction.

CNOOC, in reply, in this newest ICA approval dance, began to indicate the types of commitments it may be prepared to offer to secure ICA approval, including significant capital investment, listing CNOOC Limited’s common shares on the TSX, making Calgary its head office for North and Central American operations, vowing to maintain existing management and employees (as well as increasing jobs) and accelerating resource development.  According to Nexen’s press release, CNOOC also intends to continue to support oil sands research at Alberta universities and participate in the Oil Sands Innovation Alliance (COSIA) (see: CNOOC Limited Enters Into Definitive Agreement to Acquire Nexen Inc.).

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A new book has been published by Thorsten Kaseberg (from the German Economics Ministry) by Hart Publishing (Oxford) entitled Intellectual Property, Antitrust and Cumulative Innovation in the EU and the U.S.:

“For decades, the debate about the tension between IP and antitrust law has revolved around the question to what extent antitrust should accept that IP laws may bar competition in order to stimulate innovation. The rise of IP rights in recent years has highlighted the problem that IP may also impede innovation, if research for new technologies or the marketing of new products requires access to protected prior innovation. How this ‘cumulative innovation’ is actually accounted for under IP and antitrust laws in the EU and the US, and how it could alternatively be dealt with, are the central questions addressed in this unique study by lawyer and economist Thorsten Käseberg.

Taking an integrated view of both IP and antitrust rules – in particular on refusals to deal based on IP – the book assesses policy levers under European and US patent, copyright and trade secrecy laws, such as the bar for and scope of protection as well as research exemptions, compulsory licensing regimes and misuse doctrines. It analyses what the allocation of tasks is and should be between these IP levers and antitrust rules, in particular the law on abuse of dominance (Article 102 TFEU) and monopolisation (Section 2 Sherman Act), while particular attention is paid to the essential facilities doctrine, including pricing methodologies for access to IP.

Many recent decisions and judgments are put into a coherent analytical framework, such as IMS Health, AstraZeneca, GlaxoSmithKline (in the EU), Apple (France), Orange Book Standard (Germany), Trinko, Rambus, NYMEX, eBay (US), Microsoft and IBM/T3 (both EU and US). Further topics covered include: IP protection for software, interoperability information and databases; industry-specific tailoring of IP; antitrust innovation market analysis; and the WTO law on the IP/antitrust interface.”

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The Canadian council of Chief Executives (CCCE) has published its draft agenda for the upcoming Canada in the Pacific Century conference, to be held in Ottawa from September 24-25, 2012: Canada in the Pacific Century – Draft Agenda.

Topics are to include “Asia’s Rise and the Opportunities for Canada”, “Powering Asia’s Rise: Opportunities and Challenges for Canadian Energy Producers”, “Success Stories and Cautionary Tales From the Executive Suite”, “Canadian Trade Strategy in the Pacific Century” and “Foreign Direct Investment in the Pacific Century”.

Tentative speakers are to include a rather diverse range of representatives from CIBC, the University of Singapore, Canada Pension Plan Investment Board, Munk School of Global Affairs, University of Alberta, BMO, Rotman Institute for International Business, Manulife, McKinsey, Asia Pacific Foundation of Canada, Richardson International, Power Corporation and the BC First Nations Energy and Mining Council, as well as the Minister of Foreign Affairs John Baird and Bank of Canada Governor Mark Carney.

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The American Bar Association’s Section of Antitrust Law has issued its Summer 2012 issue of Antitrust Magazine, which includes story and article contributions from:

Deborah L. Feinstein (“Process Divergence as an Obstacle to Substance Convergence”); Christopher Wolf and Winston Maxwell (“So Close, Yet So Far Apart: The EU and U.S. Visions of a New Privacy Framework”); Ian G. John and Joshua B. Gray (“The Future of the ICN”); Benjamin Bradshaw, Julia Schiller and Ramesh Nagarajan (“Foreign Sovereignty and U.S. Antitrust Enforcement”); Greg Olsen and Daniel Harrison (“Tightening the System: The Nature and Likely Effect of UK Competition Reforms”); Jenine Hulsmann (“Exclusive Territorial Licensing of Content Rights After the EU Premier League Judgments”); Scott Sher and Andrea Murino (“Unilateral Effects in Technology Markets: Oracle, H&R Block, and What It All Means”); Douglas Richards (“Is Market Definition Necessary in Sherman Act Cases When Anticompetitive Effects Can be Shown with Direct Evidence”); Thomas P. Brown and Samuel Zun (“Patent Aggregation: Guidance from the DoJ’s Recent Approval of Three Major Patent Portfolio Acquisitions”) and Ellen Meriwether (“Class Action Waiver and the Effective Vindication Doctrine at the Antitrust/Arbitration Crossroads”).

For a copy of the Summer issue see:

Antitrust Magazine: Summer 2012

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On July 19, 2012 the Competition Bureau announced that Korean Air Lines Co., Ltd. pleaded guilty in the ongoing air cargo cartel case and was fined $5.5 million for its involvement from 2002 to 2006.

The Bureau’s investigation has led to seven convictions to date and fines of approximately $22 million (other airlines that have pleaded guilty in this case to fixing air cargo surcharges for shipments on some routes from Canada include Air France, Martinair, KLM, British Airways and Qantas).

For the Bureau’s earlier announcements in this case see: Air Carriers Plead Guilty to Price-Fixing Conspiracy (the initial round of fines was as follows: Air France – $4 million; KLM – $5 million; and Martinair – $1 million), Fourth Guilty Plea in Air Cargo Price-Fixing Conspiracy (Qantas was fined $155,000) and Cargolux Pleads Guilty in Air Cargo Price-fixing Conspiracy (Cargolux was fined $2.5 million).

The Bureau generally bases fine negotiations on the affected volume of commerce in Canada (see e.g.: Leniency Program – FAQs).  In this respect, the Bureau will often begin with a “proxy” for a cartel party’s volume of commerce in Canada of 20% (i.e., based on the party’s volume of Canadian sales during the cartel period).

Under the Bureau’s Immunity and Leniency Programs a party that fulfills all requirements of the Bureau’s Immunity Program is entitled to full immunity from prosecution, while subsequent applicants may be entitled to 50% (for the “second in”), 35% (for the “third in”) and subsequent lesser reductions in penalties under its Leniency Program (although a critical distinction between the two programs is the latter requires applicants to plead guilty).  Speed is, therefore, of the essence in evaluating whether to apply for immunity or leniency, as both of the Bureau’s programs involve a “race”.

For more about Canada’s conspiracy rules see:

Conspiracy (Cartels)

For more about the Bureau’s Immunity and Leniency Programs see:

Immunity and Leniency Programs

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