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Law Firms: Any Vision For Your Practices?

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The age-old dispute whether Law is a noble profession or a business has been long laid to rest. Law firms are set up for the practice of law and to render legal services, just as hospitals are set up to render medical services. However highlighting the importance of the administrative and business aspects of the law profession does not diminish its nobility. There is the professional aspects and the business aspects of the law. Only a well-run business can be an efficient and successful professional firm. Law is both a noble profession and a multi Dollar business.

The Financial reports (2018 gross revenue) of a few law firms sufficiently attest to this fact -Kirkland & Ellis USD 3.76 billion, Latham & Watkins USD 3.39 billion, Baker & McKenzie USD 2.9 billion; DLA Piper USD 2.84 billion, Dentons USD 2.42 billion. Wachtell, Lipton, Rosen & Katzs’ turnover in 2018 -USD 763 million; $6.530,000 in profits per equity partner. Kirkland & Ellis profits per partner $5,037,000; Latham & Watkins $3,452,000, DLA Piper$1,757,000

The sizes and corporate structures of these firms also underscore the importance of the business and administrative aspects of law practice. In the UK despite the uncertainties of Brexit and the much touted impending recession, The Lawyer (a UK based legal research magazine) – reported that well-managed law firms continue to thrive in their practices and benefit from new opportunities in the UK. The research magazine published the 2019 gross revenue of 200 top UK law firms – DLA Piper was at the top of the list with a revenue of £1.946 billion, followed by Clifford Chance £1.693billion, Linklaters £1.628billion, Allen & Overy £1.627 billion, etc.

Coming home to Nigeria, though we are bereft of statistics on law firm, the financial value of a few reported legal transactions sufficiently proves that law is both a profession and a business.

The Business of Law

From the business of law perspective, a law firm is made up of a group of people working together to deliver legal services for profit. A law firm is a vehicle formed to earn profits that will increase the wealth of its owners, all stakeholders and the community in which it operates. A law firm is an organized effort or activities by lawyers working togther to provide legal solution with the intention of building a going concern, an enduring entity.

From the business of law perspective, a law firm is a professional service that must be taken to the market (consumers); therefore it is subject to the market forces of supply and demand. Consequently sound technical knowledge alone – howbeit in Latin and English (Certiorari, Ad litem, Habeas corpus etc.), legalese, wig and gown, the gavel, and other sacred ornaments of the legal profession alone does guarantee the success of a law firm.

A Law firm should be run on sound business skills, knowledge and practices to ensure its financial sustainability. No law firm can survive and thrive without the combination of multi-disciplinary skills and professionals – which the changing aspects of law practice today demands.

Front or Backend?

Every business has a frontend and a backend. Law is no exception. There is the professional aspects and the business aspects of the law practice. The professional aspects – constitutes the frontend and the business aspects constitutes the backend. Is the frontend of a business more important than its backend? Can the backend be overlooked or compromised without consequences? In business, the quality of the backend heavily impacts the frontend.

What constitutes the backend of a law firm? The “messy little details” like Human resources – people or talent management, recruitment, retention, training and development, welfare, compensation, performance management, career progression and development, succession planning. Office Acquisition, facilities management, space planning and ergonomics.

Strategy – visioning, policy formulation, goal setting, mission and objective.  Procurement, Logistics, operations, file management. Library and knowledge management.

Business/client development – value proposition, branding, website, social media, market collateral – brochures and newsletters.

Finance – budgeting, profit drivers, pricing, fee setting, billing and collection, cashflow management, tax, insurance, cost control and internal audit.  

Governance and structure. Information technology – Practice support systems; Computer hardware and software systems, Electronic privacy issues, Disaster management and Business Continuity Processes, Document and Knowledge Management Systems, Artificial Intelligence, disruptive innovation like the commoditsation of legal services Etc.

The Balancing Act

Many law firms struggle with balancing the professional and business aspects of running their practice.Law practice have some inherent peculiarities that may pose as road-blocks to running a successful business. For instance, law firms are usually populated with very intelligent, opinionated and individualistic professionals. Independence is highly prized by lawyers. This is not a bad thing in itself but it can make governance a nightmare. Also, law firms can have highly politicised internal structures and decisions are usually consensus driven, which again, can make governance a nightmare. After “all said and done,” nothing is usually done because lawyers can have a particular strong aversion to taking directions–and management and administration is usually about directing, planning, innovating. Law firms can be individual client focused, with power usually based on client/revenue generation which is dangerous for firm cohesion. Another threat to law firm cohesion is the argumentative, competitive. Adversarial and even sometimes combative tendencies of lawyers.

Further, law firms usually are short-term focussed, bottom-line focussed and with poor investment mindset. In addition, it has been observed that lawyers are usually risk adverse.Another peculiarity is that most law firms have few role boundaries. It is typical to find lawyers in firms who wants to be the accountant, admin manager and human resources manager at the same time. Even some partnerships do not have and respect clearly defined roles. Unclear roles is the recipe for confusion in business. Importantly, running a successful business requires a lot of creativity and nimbleness. Law firms however are usually bound by precedents, are conservative, intolerant of mistakes – are trained to detect mistakes, impatient and pressurized because of deadlines. All these stifles creativity which is essential for business sustainability.

From the Back Office

From the Back Office will be focused on Law as a business. My name is Joy Harrison-Abiola, I have spent 21 years at the backend of law offices and have made some very interesting observations. Also, through the years, I have had the privilege of interacting with non lawyer (some lawyers) colleagues both in Nigeria and abroad who like me have spent years at the backend of law offices. These very seasoned business support professionals have shared their frustrations, observations and war stories that have helped in my journey. So I will be showing on this page what constitutes the back office of a law firm and how it can be effectively harnessed to make a law firm successful and sustainable.

Also Read: How Tech Is Enhancing Recruitment: An Interview With Sandy Simagwali, Co-Founder Of Graft Africa

The Trouble with Vision

A few years ago, I visited the back office of the 11th largest law firm in Boston USA – Burns & Levinson at the invitation of its CEO. I spent a couple of days and had the privilege of sitting down with one of its founders and of course my question was about Vision. What inspired the setting up of the firm in 1960? The “old man” gave me some very interesting perspectives on how they have navigated the very rocky American law business terrain for 50 years holding unto their vision. What is vision? Is there a relationship between vision and law practice? Does a vision drive a law firm or not? Is vision essential to the survival of a law firm? Who gets the vision? Is it essential that the vision is written and documented somewhere for easy reference? Who drives the vision? How is a vision communicated? Is it possible for a law firm to operate without a vision?

What is the vision of your law firm? Where is your law firm going? How far do you want to take your law firm? What will the destination look like? How will you know when you get there? A vision is an inspirational and aspirational destination on the horizon. The trouble with vision is that it is the thing lawyers typically omit to do when opening their law practice. Law firms ignore to articulate a vision for their firm. You find vision in very few law firm websites or marketing collaterals.

Meanwhile, Vision, if well crafted contributes to your brand – it has a way of carving out an identity for a firm – what it does, what it wants to become and what it believes in. Another trouble with vision I have observed from the back office is that even when a law firm articulates a vision, the vision is not translated to a shared corporate vision. Most lawyers lack the skill or the will to do this.

Why is vision, mission, values and a strategy document vital in business? The short answer is that without these, there is no direction, or there are several directions and confusion and wastage of resources follows. A good vision articulate’s the firm’s ultimate goals and objectives in a way that inspires and moves the firm in a specific direction. Any law firm that ignores this will do so at its detriment. A law firm that is serious about growth and success will pay attention to corporate visioning.

Article By: Joy Harrison-Abiola, a leading legal management professional and the Practice Administrator of Adepetun Caxton-Martins Agbor & Segun- ACAS-Law

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Kenya: Country-by-country reporting thresholds introduced from 1 January 2023

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Tax image credit: Getty

The Kenyan Government, in its latest Finance Act 2022, has enacted some key changes in the area of direct tax, including an important update on the country-by-country (CbC) reporting threshold for multinational companies.

What is country-by-country reporting?

Corporates and connected persons, such as groups of companies and multinational entities (MNEs) usually face complex compliance risks. To address the potential gaps and mismatches in various tax systems globally, the Organization for Economic Co-operation and Development (OECD) introduced Action 13 CbC reporting as part of its Base Erosion and Profit Shifting (BEPS) Action Plan. Under BEPS Action 13, MNEs are required to prepare a CbC report with aggregate data on the allocation of income, profit, taxes paid and economic activity amongst all the jurisdictions in which they operate. This report must be shared with the tax administrations in these jurisdictions, for use in high-level transfer pricing and BEPS risk assessments. Part of the solution provided by Action 13 is to require countries to adopt legislation dealing with the filing of CbC reports in their jurisdiction. 

Finance Act 2022 updates of CbC

The Kenyan Government has introduced a threshold for CbC reporting with the effect from 1 January 2023. The threshold introduced in the Finance Act is for companies with gross revenues of KES 95 billion (EUR 790 million approximately) or more, including extraordinary and investment income. From 1 January 2023, a parent entity or a constituent entity of a MNE group that is tax resident in Kenya, and that has a gross turnover of over KES 95 billion, will be required to file a CbC report of its financial and economic activities in Kenya, as well as all  other jurisdictions in which the MNE has a taxable presence.

The report must contain all information of the group’s aggregate revenue, profit or losses before tax, income tax paid, income tax accrued, accumulated earnings,  number of employees, tangible and intangible assets, cash and cash equivalents and any other information as requested by the Kenya Revenue Authority (KRA).

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Information to be contained in the master and local bundle.

The Finance Act requires a master file that must contain the following:

  • A detailed overview of the group and the group’s growth engines.
  • A description of the supply chain of the key products and services.
  • The group’s research and development policy.
  • A description of each constituent entity’s contribution to value creation.
  • Information about intangible assets and the group intercompany agreements associated with them.
  • Information on any transfer of intangible assets within the group during the tax period, including the identity of the constituent entities involved, the countries in which those intangible assets are registered and the consideration paid as part of the transfer.
  • Information about financing activities of the group.
  • The consolidated financial statements of the group.
  • Tax rulings made in respect of the group.
  • Any other information requested by the KRA.

The local file must contain:

  • Details and information of the resident constituent activities within the multinational enterprise group.
  • The management structure of the resident constituent entity.
  • Business strategies, including structuring, description of the material-controlled transaction, the resident. constituent entity’s business and competitive environment.
  • International transactions concluded by the resident constituent entity.
  • Amounts received by the entity.
  • Any other information requested. 

Exceptions to the CbC report filing requirement

The Finance Act provides certain exceptions to the filing requirements for a resident constituent entity of an MNE group. If a non-resident surrogate parent entity already files a CbC report for the group with the tax authorities of its tax jurisdiction, the jurisdiction in which the non-resident surrogate parent entity is resident requires a CbC report in terms of its domestic legislation, under the following conditions:

  • The tax authorities of the jurisdiction where the non-resident surrogate parent entity have an exchange of information agreement with the KRA.
  • The tax authority in the jurisdiction where the non-resident surrogate parent is resident has not notified the KRA of a systematic failure.
  • The non-resident parent entity has notified the competent authority in the jurisdiction of its tax residence and that the entity is the designated surrogate parent entity of the group.

Concluding remarks

The reporting requirements brought by the Finance Act 2022 are consistent with the OECD’s BEPS Action Plan 13 guidelines and the three-tiered documentation approach, which is relevant to the reporting of related-party transactions and aligns with the four minimum standards under the OECD’s BEPS project.

It is important for parent entities of MNEs operating in Kenya to note the additional compliance burden which is imposed by this new legislative update. Multinationals that would be affected by the new legislative update should review their current transfer pricing documentation and compliance processes to ensure that they are in line with the new reporting requirements under the Finance Act 2022, by 1 January 2023. Failure to comply with the CbC reporting requirements will be an offense in Kenya and subject to a fine not exceeding KES 1 million (EUR 8200 approximately), a prison term not exceeding three years, or both, upon conviction.

By: Francis Mayebe, Candidate Attorney, overseen by Virusha Subban, Partner and Head of the Tax Practice, Baker McKenzie Johannesburg

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Companies Act: The Role Of A Shareholder And Director

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By Advocate Dennis Chamisa and Dr Kim Lamont-Mbawuli (Legal Practitioner) In collaboration with Dech Legal & Associates and NLM Attorneys 

1.1. PURCHASING SHARES IN A PRIVATE COMPANY AS PER SECTION 39(2) OF THE COMPANIES ACT

Section 39(2) of the Companies Act (herein referred to as the “Act”), provides that each shareholder of a private company has a right before any other person who is not a shareholder of that company, to be offered and to subscribe for a percentage of the shares to be issued with equal voting power of that shareholder’s general voting rights immediately before the offer is made, where the company is then compelled to make an offer to all of its voting shareholders pro rata to their respective percentages of the total number of voting rights, before it may issue any shares to a third party. 

1.1.1. WHO IS BOUND BY THE SHAREHOLDER AGREEMENT

The binding force of the Shareholders Agreement stems from the law of contract, whereas section 15(6) of the Act, governs the status of a Company’s MOI and all MOIs need to be filed and registered with CIPC. The disadvantage of a Shareholders Agreement is that it binds only those shareholders who are party to it. It does not bind any other shareholders, unless they consent to be bound. 

1.1.2. WHAT IS A SUBSCRIPTION AGREEMENT 

A subscription agreement is a formal agreement between a company and an investor to buy shares of a company at an agreed-upon price. The subscription agreement contains all the required details. It is used to keep track of outstanding shares and share ownership (who owns what and how much) and mitigate any potential legal disputes in the future regarding share payout subscription agreement will include the details about the transaction, the number of shares being sold and the price per share, and any legally binding confidentiality agreements and clauses.

1.1.3. SUBSCRIPTION OF SHARES AGREEMENT 

In the event that the Company proposes to issue any shares, other than shares issued in terms of options or conversion rights in terms of section 39(1)(b), or capitalisation shares in terms of section 47 or if the consideration for any shares that are issued or to be issued is in the form of an instrument such that the value of the consideration cannot be realised by the Company until a date after the time the shares are to be issued, or is in the form of an agreement for future services, future benefits or future payment by the subscribing party.

1.2. WHAT IS THE ROLE OF A DIRECTOR OF A PRIVATE COMPANY AS PER SECTION 76 OF THE COMPANIES ACT 

By accepting their appointment to the position, directors and prescribed officers agree that they will perform their duties to a certain standard, and it is a reasonable assumption of the shareholders that every individual director and prescribed officer will apply their particular skills, experience and intelligence to the advantage of the company. 

The Act codifies the standard of directors’ conduct in section 76. The standard sets the bar for directors very high. The intention of the legislature seems to be to encourage directors to act honestly and to bear responsibility for their actions – directors should be accountable to shareholders and other stakeholders for their decisions and their actions. However, with the standard set so high, the unintended consequence may be that directors would not be prepared to take difficult decisions or expose the company to risk. 

Since calculated risk taking and risk exposure form an integral part of any business, the Companies Act includes a number of provisions to ensure that directors are allowed to act without constant fear of personal exposure to liability claims. In this regard, the Companies Act has codified the business judgement rule, and provides for the indemnification of directors under certain circumstances, as well as the possibility to insure the company and its directors against liability claims in certain circumstances. 

The Act makes no distinction between executive, non-executive or independent non-executive directors. The standard, and consequent liability where the standard is not met, applies equally to all directors.

In terms of this standard, a director (or other person to whom section 76 applies), must exercise his or her powers and perform his or her functions. these are the following; 

  •  In good faith and for a proper purpose.  
  • In the best interest of the company, and  
  • With the degree of care, skill and diligence that may reasonably be expected.

1.3. BREACH OF FIDUCIARY DUTY

 The Companies Act prohibits a director from using the position of director, or any information obtained while acting in the capacity of a director, to gain an advantage for himself or herself, or for any other person (other than the company or a wholly-owned subsidiary of the company), or to knowingly cause harm to the company or a subsidiary of the company.

Directors have a fiduciary duty to act in the best interest of the company as a whole. Directors owe this duty to the company as a legal entity, and not to any individual, or group of shareholders – not even if the majority shareholder appointed the director. 

Directors are obliged to act in good faith in the best interest of the company. They should act within the bounds of their powers, and always use these powers for the benefit of the company. Where a director transgresses his or her powers, the company might be bound by his or her action, but he or she can be held personally liable for any loss suffered as a result of the transgression. 

In discharging any board or committee duty, a director is entitled to rely on one or more employees of the company, legal counsel, accountants or other professional persons, or a committee of the board of which the director is not a member. However, the director does not transfer the liability of the director imposed by this Act onto such employees. Directors of a company may be held jointly and severally liable for any loss, damage or costs sustained by the company as a result of a breach of the directors’ fiduciary duty or the duty to act with care, skill and diligence. 

The Act sets out a range of actions for which directors may be held liable for any loss, damage or costs sustained by the company. These actions include the following;  Acting in the name of the company without the necessary authority  Being part of an act or omission while knowing that the intention was to defraud shareholders, employees or creditors  Signing financial statements that were false or misleading in a material respect.

1.4. CIVIL CLAIM AGAINST THE DIRECTOR 

Section 77(3)(b) of the Act, as read with section 22 of the Act, penalises and holds directors personally liable to the company for any loss incurred through knowingly carrying on the business of the company recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purpose. 

CONCLUSION 

Shareholders play a critical role in terms of the South African Companies Act of 2008, with reference to the affairs of the company. Just any contract, shareholders agreement is the essential document that binds the relationship of shareholders who are a party to it. Notwithstanding the existence of Memorandum of Incorporation, (MOI) one of the roles of a shareholder is the appointment of directors. Therefore, the MOI provides “mechanism of power equilibrium” between the shareholders and directors of the company. In that the shareholders using their voting rights can authorize critical transactions and any dividends proposed by the directors. 

As discussed above, subscription agreement is a contract that is between the company and investor for the purchase of shares at an agreed price. Such an agreement will have the terms and conditions agreed upon and can also be used to track any outstanding shares thus to mitigate possible legal disputes. Last but not least any director of the company ought to measure to the defined standard as per section 76 of the Companies Act, thus with reference to skills, experience and intelligence. In terms of the Act, directors ought to act with utmost honesty and should bear responsibility for their actions, as they are obligated to act in good faith and for the best interest of the company. 

In conclusion, should there be any breach of the fiduciary duty by the director, section 77 (3) (b) of the Act read with section 22 of the Act penalizes and holds the directors personally liable to the company for any loss incurred through knowing conducting the affairs of the company recklessly with gross negligence. In such instances the veil of protection will be lifted so as to protect the company as a separate entity. 

ACKNOWLEDGEMENTS

We acknowledge Dr Maribanyana Lebeko who is part of the advisory for Simanye Clinic for his assistance with respect to compilation, editing and proofreading of this article.

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Baker McKenzie Report 2022: The rapid rate of competition law development across Africa

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By Lerisha Naidu, Partner, Angelo Tzarevski, Associate Director, Sphesihle Nxumalo, Associate and Zareenah Rasool, Associate, Competition & Antitrust Practice, Baker McKenzie Johannesburg

Baker McKenzie’s latest Africa Competition Report 2022 provides a detailed analysis and overview of recent developments in competition law enforcement and competition policy in 32 African jurisdictions and regional bodies. The Report outlines how, over the past two years, African competition regulators have actively engaged in efforts to address pandemic-related challenges, but there has also been a general upward trend in competition policy enforcement across the continent.

This trend is highlighted by a number of significant recent developments in competition law regulation across the continent. Countries and regions with recent competition law developments include the Common Market for Eastern and Southern Africa (COMESA), Egypt, Ethiopia, Ghana, Kenya, Mauritius, Mozambique, Namibia, Nigeria and South Africa.

COMESA

There were various developments with regards to COMESA in 2021. In February 2021, the COMESA Competition Commission issued a Practice Note in which it amended the interpretation of the term “operate””. Prior to this, a party “operated” in a COMESA Member State if it had turnover or assets in that Member State in excess of USD 5 million. This requirement has now been removed, effective from 11 February 2021, and a party will “operate” in a COMESA Member State merely if it is active in it (without a minimum turnover or asset threshold). The impact of this will be to make it easier for a transaction to fall within the scope of the COMESA merger control regime.

The COMESA Commission has also recently issued Draft Guidelines on Fines and Penalties, Draft Guidelines on Settlement Procedures and Draft Guidelines on Hearing Procedures.

In September 2021, the COMESA Commission issued its first penalty for failure to notify a transaction within the prescribed time periods, which penalty amounted to 0,05% of the parties’ combined turnover in the Common Market in the 2020 financial year. This was imposed in relation to the proposed acquisition by Helios Towers Limited of the shares of Madagascar Towers SA and Malawi Towers Limited.

In December 2021, the COMESA Commission imposed a fine for failure to comply with a commitment contained in a merger clearance decision.

The COMESA Commission also conducted eight investigations into restrictive business practices in 2021.

Egypt

There were numerous recent developments in Egypt, including in November 2020, when the Competition Authority announced that the Egyptian Prime Ministry had approved the Prime Minister’s draft law amending certain provisions of the Egyptian Competition Law 3/2005. In February 2021, the Egyptian parliament’s Economic Affairs Committee started the discussions on the new amendments. The Competition Authority has also recently initiated market inquiries in relation to multiple sectors including healthcare, food, electronic and electrical appliances, automotive, real estate, media and petroleum sectors.

In April 2021, the Economic Court of Cairo issued a ruling in a criminal case brought in March 2020 by the Competition Authority, against five individual poultry brokers for colluding to fix the price of chicken to the detriment of consumers and chicken breeders. The court fined each broker 30 million Egyptian pounds (approx. USD 1.6 million) for agreeing to fix the price of a kilogram of chicken.

In July 2021, the Competition Authority initiated a criminal case against two companies who agreed to submit identical offers in one of the practices of the General Authority for Veterinary Services, in violation of Egyptian competition law.

The head of the Competition Authority announced plans for the creation of an Arab Competition Network to enhance cross-border cooperation between antitrust enforcers in the Middle East. The ACN would be the first to provide Arab competition authorities with an official platform to meet and discuss prominent issues and impending changes to antitrust law. The network would be run by the 22 members of the League of Arab States, which includes Egypt, Syria, Lebanon, Iraq, Jordan and Saudi Arabia, among others.

Ethiopia

In Ethiopia, the Trade Competition and Consumer Protection Authority is working on regulations to provide guidance on the application of the Trade Competition and Consumer Protection Proclamation (No 813/2013). Proclamation No. 1263/2021, which is expected to be enacted and come into force in 2022, transfers the powers of the Trade Competition and Consumer Protection Authority to the Ministry of Trade and Regional Integration.

Ghana

In Ghana, a draft Competition and Fair Trade Practices Bill is before parliament for consideration.

Kenya

The Competition of Authority in Kenya finalised its study into the regulated and unregulated credit markets in the country and issued its report in May 2021. The Authority further developed the Retail Trade Code of Practice 2021, in consultation with stakeholders in the retail sector, to address the abuse of buyer power issues arising from the sector. Also in 2021, the Competition Authority conducted a dawn raid in the steel industry and issued draft joint venture guidelines, to clarify the rules and filing requirements of joint venture arrangements.

Mauritius

The Competition Commission in Mauritius concluded a market study in the pharmaceutical sector on 8 June 2021.

Mozambique

There were numerous developments in competition law in Mozambique in 2021, including that the Competition Regulatory Authority became operational in January 2021. Regulations on Merger Notifications Forms were enacted by means of Resolution No. 1/2021 of 22 April 2021. The Regulations prescribe the different forms to be completed for merger notifications, as well as the details of the information and documentation required. Regulations on Filing Fees were enacted by means of Ministerial Diploma No. 77/2021 of 16 August 2021. Filing fees are currently set at 0.11% of the turnover of the parties in the previous year, up to a maximum of MZN 2,250,000 (approx. USD 35,000). Amendments to the Competition Regulations were enacted by means of Decree No. 101/2021 of 31 December 2021.

Namibia

A Competition Bill is in progress in Namibia, and the Competition Commission expects to submit the final version of the Competition Bill to the Ministry of Industrialisation and Trade by the end of June 2022.

Nigeria

On 2 August 2021, Nigeria adopted the Merger Review (Amended) Regulations 2021, which set out new fees applicable for merger filings. The Federal Competition and Consumer Protection Commission launched and publicised an investigation into the alleged anticompetitive conduct of five companies in the shipping and freight forwarding industry in October 2021. 

South Africa

There were various developments in South Africa in 2021, including in May 2021, when the Competition Commission launched the Online Intermediation Platforms Market Inquiry, focusing on four broad online intermediation platforms and market dynamics that specifically affect business users – eCommerce marketplaces, online classified marketplaces, software app stores and intermediated services (such as accommodation, travel, transport and food delivery). The Inquiry is ongoing with a provisional report scheduled for release on 10 June 2022, and the final report scheduled for release in November 2022.

In April 2021, the Commission released its market inquiry reports on Land Based Public Transport. Furthermore, in April 2021, the Commission published its final report on an impact assessment study it conducted in relation to COVID-19. The report sets out the findings of the Competition Commission regarding the impact of the COVID-19 block exemptions and the enforcement work done by the Competition Commission during the pandemic. The Competition Commission’s fifth Essential Food Pricing Monitoring Report, which is released quarterly, focused on tracking the impact of the COVID-19 pandemic and consequent economic crisis on food markets.

In May 2021, the Commission issued, for comment, draft guidelines on Small Merger Notifications, which contain specific guidance applicable to the assessment of digital mergers.

Notably, 2021 was the year when the Commission prohibited a merger solely on public interest grounds, making it the first transaction to be prohibited on non-competitive grounds. Ultimately, however, the merger was conditionally approved before the Competition Tribunal.

In November 2021, the Commission released its Economic Concentration Report, which highlighted patterns of concentration and participation in the South African economy. The report includes details on the Commission’s power to launch market inquiries into highly concentrated industries, as well as its increased authority to impose structural remedies on businesses in these sectors.

In March 2022, the Commission issued Guidelines on Collaboration between Competitors on Localisation Initiatives, which are aimed at providing guidance to industry and government on how industry players may collaborate in identifying opportunities for localisation and implementing commitments related to localisation initiatives in a manner that does not raise competition concerns.

In March 2022, the Commission launched a market inquiry into the South African fresh produce market, which will examine whether there are any features in the fresh produce value chain, which lessen, prevent or distort the competitiveness of the market.

The Commission concluded various settlement agreements with market players (e.g., grocery retailers and laboratories) to reduce the prices of goods and services.

 

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