Archive for the 'Publications' Category
November 9, 2012
I am attaching below a copy of our PowerPoint presentation from the recent Canadian Society of Association Executives’ (CSAE) 2012 National Conference & Showcase, held in Ottawa last week. Our presentation focused on competition law and compliance for trade and professional associations, including in relation to key association activities (e.g., fee schedules and compensation, data collection and information exchanges, association membership). Also included are a number of association related case studies: Competition Law and Associations in Canada.
The Global Competition Review has published its November 2012 edition of GCR that includes a survey of some current issues in Canada including the departure of Canada’s Commissioner of Competition (Melanie Aitken), Canadian competition litigation and an interview with the former Commissioner:
“The enforcer departs
Melanie Aitken took over Canada’s Competition Bureau three years ago with a mandate to improve antitrust enforcement in the country. She’s done that, bringing scores of cases resulting in guilty pleas and courtroom victories. While critics of her enforcement agenda and approach remain, she insists her time at the bureau was good for Canadians. Ron Knox reports from Ottawa.
Canada’s antitrust bar
Over the past two years, a revised antitrust law and a more active enforcer – coupled, of course, with a sputtering merger market – has ushered in a new era of competition litigation in Canada and a more prominent focus on contentious matters generally.
A new global competition/antitrust law text that caught my eye is the soon to be published by Kluwer: Landmark Cases in Competition Law: Around the World in Fourteen Stories (forthcoming, January, 2013). I noticed this upcoming new book based on its unique approach to competition law in key jurisdictions, including Canada: a discussion of one “landmark case, scenario or ‘saga’ from each jurisdiction.” Evidently a sort of competition law Canterbury Tales. In addition to Canada, the survey also includes discussions of Australia, Brazil, the EU, Germany, Japan, New Zealand, South Africa, the UK and U.S.
Abstract:
“It is the thesis of this fascinating and highly instructive book on competition law that an examination of one landmark case, scenario, or ‘saga’ each from a range of legal systems leads to a thorough understanding of the issues informing and arising from competition policy, law, and legal practice. To this end, leading scholars from 14 jurisdictions enhance their academic authority and rigour with an element of panache to describe a particularly salient case in each of their countries, commenting in depth on the contribution of the case to the development of their particular competition law culture and to the case’s enduring significance for competition law and its enforcement from a global perspective. There are chapters for each of thirteen countries as well as the European Union, preceded by an informative and thoughtful introduction. For each landmark case selected, the legislative background, the case facts, and the legal ruling and reasoning are all minutely described, along with commentary, critique, and assessment of the case’s impact and contemporary significance. The cases cover vast swathes of the competition law territory in terms of substance and procedure, dealing with cartels, abuse of dominance, mergers, and vertical restraints, and involving diverse forms of public and private enforcement processes.
Aspects covered include the following: the tension between the objective of economic efficiency and that of low prices; the public interest test; bid-rigging in public procurement; entitlement of dominant companies to compete as other firms do; the hard-to-draw line between legitimate competition and unlawful monopolizing conduct; the dangers of eclectic borrowing in the development and interpretation of competition law rules; price-fixing collusion; ‘hub and spoke’ cartels; resale price maintenance agreements and the U.S. ‘rule of reason’; the increasing use of private enforcement and the right for victims of a competition law infringement to seek compensation; merger control in energy markets and the political use of merger review rules to benefit domestic firms; cooperation with criminal enforcement agencies and prosecutors; the role courts play in undertaking adequate legal supervision of competition authorities; leniency processes and obtaining access to ‘confidential’ whistleblowing documentation; imposition of administrative fines and other deterrence-based sanctions; and how the ‘consumer welfare’ standard is interpreted.
The American Antitrust Institute (aai) has published a new working paper entitled “Private Recoveries in International Cartel Cases Worldwide: What do the Data Show”?, which includes data on private actions in Canada.
Abstract:
“Despite being around for more than a century in the United States, the role played by ‘treble damages suits’ in cartel enforcement is controversial … Some think of them as exemplars of a hyper litigious society, while others perceive them as essential elements in a rational cartel-enforcement program. In the EU and other jurisdictions outside the United States, the desirability and ideal design of private rights of action are currently matters of intense debates … The purpose of this paper is to examine the size and role played by private damages recoveries in antitrust suits directed at contemporary hard-core international price-fixing cartels. After discussing the data source for this paper, I then describe the amounts and trends in U.S. settlements in private antitrust suits since 1990, the dominance of U.S. cases in the world, the extent to which private suits follow government investigations, and the severity of private recoveries relative to affected sales and to damages caused by the cartels. The last ratios can be used to judge the ex post deterrence power of current monetary cartel penalties. This paper elaborates and extends a book chapter by the author …”
Some of the Canadian data in this recent aai paper include statistics showing cartel damages between 1990 and 2012 of more than $436 million (second to the U.S.), that nearly all private competition/antitrust suits in Canada are follow on suits following U.S. actions (only 10 of the 130 sample Canadian recoveries were in relation to solely non-U.S. actions), the U.S. is the leader in nominal settlement and restitution amounts representing 93% worldwide (with Canada representing 1% and the rest of the world 6%), that Canada is relatively severe in penalties imposing a median amount of fines around 15% (median fines of about 17.5% for global cartels). This study, however, appears to confuse somewhat penalties imposed under the Competition Act (e.g., guilty pleas) with private civil action settlements under the Act. Nevertheless, it includes rather a lot of information and data.
The Brookings Institution has published a very interesting new article on the proposed acquisition by CNOOC (China National Offshore Oil Corporation) of Nexen in Canada, which discusses, among other things, some of the possible rationales for Chinese interest in unconventional oil assets in Alberta including increasing reserves and production (North America now being the “epicenter” of unconventional upstream oil and gas mergers), a desire to acquire technological and operational expertise to develop China’s own domestic shale gas reserves and to diversify political risk. I thought this was a rather good commentary on the proposed CNOOC/Nexen deal (the Investment Canada Act review for which was recently extended by another 30 days for a national security review). This recent Brookings article also discusses CNOOC’s failed bid for Unocal. For a copy of this Brookings Institution note authored by Erica Downs see: China, Iran and the Nexen Deal.
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In the second of two recent major announcements (the first being yesterday’s release of the CRTC’s inaugural guidelines under Canada’s impending anti-spam legislation – see: here), Canada’s telecom regulator today announced public consultations on a new mandatory wireless code. The thrust of the new consultations appears to be primarily two-fold: to impose guidelines for contracts (e.g., increased clarity of terms, required terms, changes to terms, cancellation, expiry, renewals, etc.) and reduce potential misleading advertising related issues.
While the CRTC has allowed market forces to govern the wireless industry since the early-1990s, this new announcement shows some willingness by the CRTC to regulate Canada’s concentrated wireless sector (albeit at this stage through a mandatory code of conduct). In making the announcement, the CRTC’s Chairman Jean-Pierre Blais said:
“Our goal is to make sure that Canadians have the tools they need to make informed choices in a competitive marketplace. … In the past, Canadians have told us that contracts are confusing, and that terms and conditions can vary greatly from one company to another. We are asking them to assist us in developing a code that will help them better understand their rights as consumers and the responsibilities of wireless companies.”
The CRTC’s Notice of Consultation describes the rationale for the new consultation and code:
“In Telecom Decision 2012-556, the Commission determined that it would be appropriate to develop a code for retail mobile wireless data and voice services (mobile wireless services) to ensure the clarity of mobile wireless service contracts and related issues for consumers. The Commission concluded that consumers need additional tools to better understand their basic rights, as well as their service providers’ responsibilities with respect to mobile wireless services, in order to participate in the competitive market in an informed and effective manner. With this Notice of Consultation, the Commission initiates a proceeding to establish a mandatory code to address the clarity and content of mobile wireless service contracts and related issues … The code developed as a result of this proceeding is intended to provide a clear and concise list of consumers’ rights and service providers’ responsibilities regarding mobile wireless services.”
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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October 10, 2012
On October 10, 2012, the Canadian Radio-television and Telecommunications Commission (the “CRTC”) issued new guidelines on Canada’s anti-spam legislation (the Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) (“Interpretation Guidelines”) and Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation) (“Toggling Guidelines”). These are the first of a series of CRTC guidelines to be issued to facilitate compliance with Canada’s upcoming anti-spam legislation.
The National Competition Law Section of the Canadian Bar Association has published a new issue of its Competition Law Review (which is now also available in a searchable format online).
This new issue includes articles on The Competition Act of 1986, Competitor Agreements: Interpreting Criminal Conspiracy in a Blended Criminal-Civil Regime, Section 36 of the Competition Act, Abuse of Dominance in Canada: Reflections on 25 Years of Section 79 Enforcement, The Treatment of Vertical Price Restraints under the Competition Act, The Evolution of Vertical Distribution Practices under the Competition Act, 25 Years of Merger Review in Canada, The Evolution of Canada’s Pre-Merger Notification Regime (1986-2012), Foreign Investment Screening under Canada’s Investment Canada Act, Misleading Advertising and Deceptive Marketing Practices under the Federal Competition Act, A Quarter Century of the Competition Tribunal and Economics and Canadian Competition Policy.
From the CBA:
“Volume 25, Issue 2 is a special edition devoted to a retrospective on 25+ years of the Competition Act and the Investment Canada Act. Leading members of the bar, including four former Commissioners, have authored high quality papers taking an in-depth look at the substantive and procedural development of those statutes. We trust that you will find them informative, thought-provoking and enjoyable.”
For a copy see: Canadian Competition Law Review (Fall 2012)
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For more information about our regulatory law services contact us: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
