Predatory Pricing Under the Federal Competition and Consumer Protection Act of 2019 of Nigeria: An Unfinished Business

Predatory pricing is one of the market practices that are prohibited in competition law. It occurs when a dominant firm sells its product at an unreasonably low price in order to eliminate competitors from the market. The Federal Competition and Consumer Protection Act, 2019 of Nigeria prohibits this practice. This article, therefore, examines predatory pricing under the Act. It argues that the prescription of the cost-based principles of marginal and average cost as sole determinants of predatory pricing under the Act would not provide the Federal Competition and Consumer Protection Commission (FCCPC) and courts with the appropriate legal standard in determining predatory pricing. It suggests that the provision of the law should be reformed to include the principle of recoupment as a legal standard for imposing liability for the practice against defaulting firms. This will assist the FCCPC and courts to distinguish pro-competitive predatory pricing from anticompetitive predatory pricing.

The Centrality of Rivalry

The aim of this article is to argue that the old-fashioned idea of rivalry remains central to the concept of effective competition and, in turn, to the promotion of the competitive process. Rivalry was the core meaning of competition among the early economists. The concern with vigorous, sustained actual rivalry may have been lost sight of, but it ought not to have been. Rivalry cannot of course be the exhaustive focus for many other factors and influences affect the level of effective competition. But a searching rivalry inquiry provides a valuable initial screen. By reemphasizing the primacy of rivalry, we may also foster the ability of competition law to act not just as a key driver of economic efficiency and growth, but also as a pro-democratic vehicle to check powerful private centers of economic power.

Labor Noncompete Agreements: Tool for Economic Efficiency or Means to Extract Value from Workers?

A number of theoretical arguments have been offered in favor of noncompete provisions in labor agreements. While there has been considerable empirical research on the effects of those provisions, there has been little direct evaluation of the arguments themselves. In this article, I lay out and evaluate three commonly heard arguments, namely, (1) the voluntary nature of labor agreements justifies a strong inference that the terms of those agreements, including noncompete provisions, are beneficial for both workers and firms and that they are economically efficient, 2( A) noncompetes facilitate efficient knowledge transfer from firms to workers, and 2( B) noncompetes encourage efficient firm-sponsored investment in worker training. These arguments, though not entirely without merit, mostly do not survive close scrutiny, and in fact such scrutiny reveals strong arguments that point in the opposite direction. In addition, noncompetes may cause important additional harms that are not measured in conventional economic research.

Partial Price-Fixing and Semi-Collusion

Many cartels do not directly fix the price of products. Instead, the participants may agree on a starting price for negotiations or the price of a component of the overall price. Antitrust investigations reveal that cartel agreements are also often very imperfectly implemented. Antitrust law in the United States and the European Union has typically taken a robust approach to these practices even where economic analysis might be unable to show that such practices always or almost always harm consumer welfare. The decision of the New Zealand Supreme Court in Lodge Real Estate Ltd. v. Commerce Commission offers a New Zealand perspective on the concept of a price-fixing agreement and imperfect collusion. The Court, this article argues, reached the correct decision in Lodge. The decision, however, evidences a pragmatic judgment, rather than the confident deployment of economic learning or foreign case law within the statutory framework of the Commerce Act 1986. The language of sections 30 and 30A of the Act was borrowed from an Australian statute, which in turn had attempted to capture the state of United States price-fixing law in the 1970s. A more formalistic and pre-Chicago approach to antitrust is evident in the language, much of which was inspired by United States v. Socony-Vacuum Oil Co. The case also highlights some of the distinctive features of the competition law in New Zealand. The reluctance to develop to guide in the application of the general provisions of the Commerce Act and requiring a demonstration of an effect on price on the facts may mark a departure from the body of pricing case law in the United States and the European Union and risks undermining the per se prohibition of cartel conduct in the Commerce Act. Without the same depth and breadth of cartel case law, the adoption of a more flexible approach to anticompetitive agreements evident in some decisions in the United States and the European Union could have different effects in a smaller jurisdiction.

Designing an AfCFTA-Driven Continent-Wide Competition Policy Around the Regional Economic Communities

Implementation of the African Continental Free Trade Area (AfCFTA) Agreement will lead to liberalization of trade in Africa, thus expanding the market for African products and services. Expansion of markets necessitates development of a regulatory framework that will promote healthy competition among businesses and protect consumers’ welfare. The Agreement recognizes this fact and has set out the Competition Protocol among the key enablers of its success. Since the regional economic communities (RECs) are the building blocks of the continental wide free trade area, the analysis of their regional competition regime is paramount for providing insight that will guide the development of the Competition Protocol. This article responds to this need by analyzing Africa’s four largest RECs and providing policy proposals on how the continental competition policy should be fashioned. Specifically, this article looks at the RECs’ institutional structure, principles, and carries out a legal, economic, and political analysis on the same. It examines how these laws relate to the three elements (abuse of dominance, anticompetitive mergers, and acquisitions) of competition policy and the challenges that they pose in achieving AfCFTA’s goal. It also looks into the challenges that affect trade and fair competition in the region. Finally, it offers proposals on the competition framework that bridge the gap between the AfCFTA Agreement objectives and the African economic, political, and legal realities.

The Coca-Cola Company/Coca-Cola Beverages Africa Merger: Lessons for Robust Regional Competition Enforcement

This article uses the Coca-Cola Company/Coca-Cola Beverages Africa merger to illustrate the important role that competition policy should continue to play in the regional and continental integration agenda. The case provides an illustrative example that the structure and reach of firms play a pivotal role in the dynamics of value chains, as well as on the extent to which market power can potentially be exerted within and across countries. Competitive rivalry is necessary for innovation and lower prices, but the playing field needs to be leveled in order for entrants and smaller rivals to make and realize investments, build capabilities, and participate effectively. Competition reforms that take a bottom-up approach and account for the varying levels of development of countries play an integral role in opening up markets for entrants and small rivals, which in turn allow for the objectives of the African Continental Free Trade Area to be realized.

The Vodafone/Sky Decision and Vertical Mergers in New Zealand

As Professor Ahdar’s text shows, New Zealand’s competition law has undergone an evolution. Views on various practices have changed and this led to academic disagreements. One area, however, has been free from any controversy and that is vertical mergers. The reason is not uniformity of philosophy—but rather more prosaic. New Zealand has not had any cases. This changed with the Vodafone/Sky merger. This article discusses the Commerce Commission’s decision to decline the merger and how it is in line with current thinking on vertical mergers.

The Politics and Practice of New Zealand Competition Law

There is a wind of change blowing through global competition law and policy. Four or five years ago, there were signs a front was coming. Progressive commentators were fretting about years of seemingly unchecked market concentration. They were asking whether greater antitrust intervention might soothe rising inequality, prop up wages, and even disband aggregated political power. Some from the vanguard of this movement now occupy the most influential positions in the global antitrust endeavor. In this article, I locate New Zealand’s experience within the international normative debate over the law’s objectives by reference to the country’s modern economic history. And I explain how policy translates into practice at the enforcement coal face in New Zealand. In doing so, I observe that the country’s competition agency, the Commerce Commission, is failing in its duty to investigate and prosecute exclusionary conduct in the jurisdiction.