Archive for the 'News' Category
I had a chance today to look through some of the responses to the Bureau’s public consultations on its Revised Draft Abuse of Dominance Enforcement Guidelines. The Bureau issued new draft Abuse Guidelines for public comment on March 22, 2012.
Comments have now been posted, including by the American Bar Association (joint comments by the ABA’s Sections of Antitrust and International Law – see my earlier post: here), the National Competition Law Section of the Canadian Bar Association, Canadian Chamber of Commerce and C.D. Howe Institute Competition Policy Council.
Some of the more interesting points made in the various submissions include:
“Minimalist approach”. Concerns have generally been expressed with the “minimalist” approach taken by the Bureau in its revised draft Guidelines, which are substantially shorter and provide conspicuously less guidance than its earlier 2009 draft.
Market power. Recommending increased guidance on the degree of market power required to meet the “substantially or completely control” test (i.e., dominance) under the first branch of section 79.
Safe harbours. Suggesting that the Bureau adopt bright-line safe harbours for single and joint-firm conduct of 50% and 75% (the Bureau’s position in the current draft is that a market share between 35% and 50% will not give rise to a presumption of dominance, but “may be examined by the Bureau depending on the circumstances”, in contrast but more pro-firm friendly, to its position in its earlier draft that a share of 35% or higher would normally prompt continued investigation). The CBA Competition Section has advocated that the Bureau adopt an “unambiguous single-firm safe harbor market share threshold of 50%”.
Joint dominance. Concerted calls for the Bureau to provide increased guidance as to what in its view will constitute joint dominance under section 79, particularly what it considers necessary to establish the requisite linkage between firms to be considered to be jointly dominant (with the CBA Competition Section suggesting that coordination or tacit agreement should be required as a minimum for a finding of joint dominance).
Anti-competitive acts, intent and business justifications. Calling for increased guidance as to what it considers will constitute anti-competitive acts and intent, justification for a departure from established case law that an anti-competitive act must be intended to have a negative effect on a competitor and to restore guidance relating to legitimate business justifications (the subject of somewhat brief and cryptic comments by the Federal Court though significantly more commentary previously by the Bureau than in the current draft). With respect to legitimate business justifications, the various comments criticize the considerably pared down discussion by the Bureau of what will constitute a legitimate business justification for conduct that may otherwise constitute an anti-competitive act (which has been held by the Federal Court to be one factor that may offset otherwise anti-competitive acts for the second branch of the test under section 79).
Exclusionary acts and raising rivals costs. Criticizing the Bureau for withdrawing its previously more detailed guidance (in its 2009 draft Guidelines) relating to exclusionary acts and raising rivals’ costs. The earlier draft Guidelines, for example, provided detailed appendices setting out conduct previously found by the Tribunal to be anti-competitive, as well as significantly more detailed discussions by the Bureau previously of anti-competitive acts.
Predatory conduct. Suggesting that increased guidance from the Bureau would be helpful relating to its position on predatory pricing, including how it will implement a price-cost screen and situations that may not warrant enforcement. There have only been a handful of predatory pricing cases in Canada in the past twenty-five years since the introduction of the modern Competition Act, and significant questions remain including the appropriate measure of cost and legitimate justifications for below cost pricing.
Anti-competitive effects (SLC). Calling for increased analysis of how the Bureau will apply the “but for” test for a substantial lessening of competition, set out by Canada’s Federal Court in Canada Pipe – in the CBA Competition Section’s words, while “… the ‘but for’ analysis is conceptually simple, the practical application of this test is complex” (and remains unclear in Canada).
A few interesting regulatory law developments caught my eye today including:
Stanford University Press has published a new book entitled The Global Limits of Competition Law, edited by Daniel Sokol and Ioannis Lianos: Stanford University Press – The Global Limits of Competition Law.
The American Antitrust Institute has published a new global handbook on private competition law enforcement entitled The International Handbook on Private Enforcement of Competition Law: Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law.
The Federal Government has introduced a new Safe Food for Canadians Act: Harper Government Introduces Safe Food for Canadians Act.
The Federal Privacy Commissioner yesterday issued a new policy position on online behavioural advertising: Policy Position on Online Behavioural Advertising.
The New York Times published an interesting Barnes & Noble Op Ed arguing that the settlement with e-book publishers would “punish consumers”: Barnes & Noble Argues Book Settlement “Punishes Consumers”.
The Australian competition regulator (the ACCC) has approved the Glencore/Viterra transaction: Australia Competition Watchdog Approves Glencore Takeover of Viterra.
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The Global Limits of Competition Law
Stanford University press has published a new book entitled The Global Limits of Competition Law edited by Daniel Sokol and Ioannis Lianos.
From Stanford University Press:
“Over the last three decades, the field of antitrust law has grown increasingly prominent, and more than one hundred countries have enacted competition law statutes. As competition law expands to jurisdictions with very different economic, social, cultural, and institutional backgrounds, the debates over its usefulness have similarly evolved.
This book, the first in a new series on global competition law, critically assesses the importance of competition law, its development and modern practice, and the global limits that have emerged. This volume will be a key resource to both scholars and practitioners interested in antitrust, competition law, economics, business strategy, and administrative sciences.”
For more information see:
Stanford University Press – The Global Limits of Competition Law
The International Handbook on Private Enforcement of Competition Law
The American Antitrust Institute has published a new book entitled The International Handbook on Private Enforcement of Competition Law, including chapters on Canada, the United States, Europe, Australia, China, India, South Africa and Brazil, among others.
From Edward Elgar Publishing:
“This comprehensive and well written volume surveys the private enforcement provisions of virtually every country in the world that has a competition law recognizing private actions. It is a first-of-its-kind, incredibly valuable undertaking. In addition to individual country surveys this book includes valuable comparative studies of private enforcement as well as theoretical and empirical analysis of its effects. Every competition lawyer with a multinational practice will benefit from owning it.” (Herbert Hovenkamp, University of Iowa, US)
For more information see:
Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law
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For more information about our regulatory law services contact: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
The Toronto Sun has reported that the federal Competition Bureau has commenced an investigation into alleged price-fixing activities among concrete companies in the Greater Toronto Area home-building industry.
According to the Bureau, it is investigating businesses in the residential concrete forming industry in the Greater Toronto Area (companies that create basement foundations for residential homes). In addition to contractors, the allegations appear to include a trade association, the Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity (the LRFA). Also according to Bureau officials, criminal searches have been conducted in the Toronto area.
Under section 45 of the Competition Act, three types of agreements between competitors are “per se” illegal (i.e., with no adverse competitive impacts required to be proven): (i) price-fixing agreements (agreements to fix, maintain, increase or control the price for the supply of a product or service), (ii) market allocation/division agreements (agreements to allocate sales, territories, customers or markets for the production or supply of a product) and (iii) output/supply restriction agreements (agreements to fix, maintain, control, prevent, lessen or eliminate the production or supply of a product). Other types of agreements between competitors are potentially subject to review under a second and separate non-criminal reviewable matters agreement provision (section 90.1).
The construction industry has long been a target of competition/antitrust regulators. For example, some of the construction related cases in Canada, many of which have also involved trade associations and have gone back about a century, have included building contractors, corrugated metal pipe manufacturers, electrical contractors, gypsum dealers and manufacturers, plumbing contractors, road surfacing contractors, chain link fence contractors, among others.
The CBA’s National Section on International Law has called for papers for its next newsletter:
“It is time again to put together a newsletter for the International Law Section. Please consider providing a submission for the next edition. We are looking for articles of interest to all Section members: (i) updates on recent/upcoming activities including substantive developments in your jurisdiction; (ii) case summaries; (iii) new legislation.
Here are a few guidelines to help with your submission: (i) articles only need to be between 300 and 1,000 words; (ii) articles over 1,000 words must be accompanied by a summary or précis (100-300 words); (iii) articles can be submitted in French or English.
Today was a day for telecom – some of the interesting telecom, competition and regulatory law developments include:
The Acting Chairman of the CRTC delivered remarks to the Canadian Telecom Summit in Toronto on competition in the telecom sector, proposed small telecom ownership rule changes, caps in the upcoming spectrum auctions, Do Not Call List enforcement funding (to allow the CRTC to recover administration and enforcement costs from the telemarketing industry) and anti-spam enforcement: Speech by Leonard Katz to the Canadian Telecom Summit.
The Minister of Industry also delivered a keynote address at the Telecom Summit with brief remarks discussing the spectrum auctions and proposed small telecom ownership rule changes, as well as new funding for SMEs, copyright reform and anti-spam legislation: Speaking Points to the Canadian Telecom Summit, Minister Paradis Challenges Telecom Industry to Innovate, Create and Thrive.
A few interesting competition and regulatory law developments caught my eye today including:
The Federal Privacy Commissioner announced that she would be tabling the annual PIPEDA Report in Parliament tomorrow: Media Advisory – Commissioner’s annual report on private-sector privacy issues expected to be tabled in Parliament, Privacy Commissioner news release.
Late last week the Federal Attorney General appointed a new Competition Bureau Chairman: Competition Tribunal Appointment Announced.
Gus Van Harten of Osgoode Hall Law School has published an interesting, if critical, note on Canada’s foreign investment rules (thanks to our friend Harpinder Mangat at Carswell who Tweeted this): Not all foreign takeovers are good for Canada.
On May 25, 2012, the Federal Minister of Industry Christian Paradis announced that the Government had issued a Mediation Guideline to introduce formal mediation procedures under the Investment Canada Act (ICA). The Industry Minister also announced that the ICA Regulations would be amended to: (i) gradually increase the threshold for review of investments involving WTO investors to C $1 billion (increased from the current C $330 million) and (ii) introduce (or more accurately reintroduce) a new enterprise value test for the valuation of Canadian companies being acquired, both to implement amendments to the ICA passed on March 12, 2009 (see our earlier posts here and here).
Draft Regulations were first published for public comment in July, 2009 (see: Canada Gazette (July 11, 2009)).
Revised draft Regulations have now been published in the Canada Gazette for public comment (see: Regulations Amending the Investment Canada Regulations).
According to the Government, the proposed changes would “improve Canada’s foreign investment review framework, while maintaining the Government of Canada’s commitment to examine significant foreign investment transactions to determine whether they are likely to be of net benefit to Canada.” The shift to an enterprise test from the current book value of assets test is meant to better reflect the value of businesses as going concerns and importance of intangible assets in service and knowledge-based industries.
In general, the proposed new Regulations would: (i) gradually raise the review threshold for investments involving WTO entities to C $1 billion based on enterprise value over four years (to $600 million for two years, $800 million for the next two years, $1 billion after four years, and then indexed annually based on Canadian GDP), (ii) establish the methodology to calculate the enterprise value of a Canadian business, (iii) make conforming changes to remove references to transportation, financial services and uranium production sectors (lower thresholds for which sectors have been eliminated) and (iv) formalize the process for collecting information relevant to the net benefit and national security foreign investment review processes.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
