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The Liberalisation of the Telecommunications Sector in Sub-Saharan Africa and Fostering Competition in Telecommunications Services Markets pp 163–210Cite as

Foreign Direct Investment in Telecommunications Sector and Regulation of Anti-Competitive Behaviour: The Specific Case of Cross-Border Mergers

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Part of the book series: Munich Studies on Innovation and Competition ((MSIC,volume 6))

Abstract

This chapter focuses on the regulation of anti-competitive behaviour linked to foreign direct investment (FDI) in the telecommunications sector. Sub-Saharan Africa’s booming telecommunications sector is strongly tied to increased FDI flows into the sector following the change in telecommunications sector policy in most countries from monopoly to competition. FDI may take the form of foreign investment involving one enterprise in another country acquiring a degree of control over another enterprise in a domestic country as opposed to just providing financial capital.

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Notes

  1. 1.

    OECD, Benchmark Definition of Foreign Direct Investment (3rd edn, OECD 1996) 7.

  2. 2.

    Mark D J Williams, ‘Advancing the Development of Backbone Networks in Sub-Saharan Africa’ in Information and Communications for Development: Extending Reach and Increasing Impact (World Bank 2009) 123.

  3. 3.

    ‘World Bank Private Participation in Infrastructure Database: Regional Snapshots’ <http://ppi.worldbank.org/explore/ppi_exploreRegion.aspx?regionID=2> accessed 15 June 2017.

  4. 4.

    Oji-Okoro Izuchukwu, ‘Relationship between FDI and Telecommunication Growth in Nigeria’ (7th International Conference on Innovation and Management, Paris, March 2011) 1.

  5. 5.

    Apart from Global Mobile (Glo) which is an Nigerian based MTG, the other mobile operators, EMTS Ltd (Etisalat), MTN Nigeria and Airtel Nigeria are local subsidiaries of MTGs. As at April 2017, the local subsidiaries of MTGs had an aggregate of 111 million mobile telephone subscribers compared to the 37.2 million subscribers for Glo, according Nigerian Communications Commission (NCC) data ‘Subscriber/Operator Data’ <http://www.ncc.gov.ng/stakeholder/statistics-reports/industry-overview#view-graphs-tables-2> accessed 15 June 2017.

  6. 6.

    Cheikh Tidiane Gadio, ‘Institutional Reform of Telecommunications in Senegal, Mali and Ghana: The Interplay of Structural Adjustment and International Policy Diffusion’ (1995 DPhil dissertation, Ohio State University) 3.

  7. 7.

    Ibid.

  8. 8.

    Elizabeth Asiedu, ‘On the Determinants of Foreign Direct Investment to Developing Countries: Is Africa Different’ 30 (2002) World Development 107. However, there are exceptional cases in the telecommunications sector in Sub-Saharan Africa. For example, in Nigeria Globalcom limited, a 100 percent Nigerian owned company is a major player in the telecommunications sector. Similarly in South Africa, MTN is a key player in the telecommunications sector and the largest MTG in Sub-Saharan Africa.

  9. 9.

    See specifically, Sects. 2.4.2 and 4.5.1 of this study which discuss the strong presence of local subsidiaries of MTGs in Sub-Saharan Africa and Uganda, respectively. The two sub-sections raise the concern that local subsidiaries of MTGs may leverage their strong financial position and engage in anti-competitive behaviour in order to take dominant positions in the markets in which they operate.

  10. 10.

    UNCTAD, World Investment Report 1997: Transnational Corporations, Market Structure and Competition Policy (UN 1997) 134.

  11. 11.

    Magnus Blomström, ‘Foreign Direct Investment and Productive Efficiency: The Case of Mexico’ (1986) 35(1) Journal of Industrial Economics 97 points out that a local subsidiary of a MNC with financial stay may drive out local competitors through predatory pricing since short term losses should not be too serious a problem. See also Richard S Newfarmer, ‘TNC Takeovers in Brazil: The Uneven Distribution of Benefits in the Market for Firms’ (1979) 7(1) World Development 25 who explores the effect of FDI in the Brazilian electrical industry. The article notes that MNCs used predatory pricing as a means of gaining dominant position in the market. Maria C Lattore, ‘Multinationals and Foreign Direct Investment: Main Theoretical Standards and Empirical Effects’ UCM Working Paper 6/2008 23 <http://estudiosestadisticos.ucm.es/data/cont/docs/12-2013-02-06-CT06_2008.pdf> accessed 15 June 2017 highlights two reasons why MNCs presence can lead to high market concentration in a given market: (1) they are more efficient than local firms; (2) they can engage in conduct that restricts competition for example, predatory pricing sustained by their financial staying power.

  12. 12.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 14 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  13. 13.

    While some economists have concluded that FDI increases competition in the recipient market, for example, John H Dunning and Sarianna M Lundan, Multinational Enterprises and the Global Economy (2nd edn, Edward Elgar 2008), other economists, particularly those focusing on developing countries, have expressed the view that FDI stifles competition. See Sanjaya Lall, ‘Multinationals and Market Structure in an Open Developing Economy: The Case of Malaysia’ (1979) 115(2) Weltwirtschaftliches Archiv 325; Magnus Blomström, ‘Foreign Direct Investment and Productive Efficiency: The Case of Mexico’ (1986) 35(1) Journal of Industrial Economics 97; and Selim Raihan, ‘Foreign Competition and Growth: Bangladesh Manufacturing Industries’ in Paul Cook, Raul Fabella and Cassey Lee (eds), Competitive Advantage of Competition Policy in Developing Countries (Edward Elgar 2007).

  14. 14.

    UNCTAD, World Investment Report 1997: Transnational Corporations, Market Structure and Competition Policy (UN 1997); UNCTAD, Cross-border Mergers and Acquisitions and Development, World Investment Report (UN, 2000); and UNCTAD, ‘Objectives of Competition Law and Policy: Towards a Coherent Strategy for Promoting Competition and Development’, Note by UNCTAD Secretariat (16 February 2003).

  15. 15.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 13 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  16. 16.

    CUTS International, ‘Issues Paper on Cross-Border Competition Issues in the Context of the DOHA Agenda’ <http://www.cuts-international.org> accessed 15 June 2017; and UNCTAD, ‘Objectives of Competition Law and Policy: Towards a Coherent Strategy for Promoting Competition and Development’ Note by UNCTAD Secretariat (16 February 2003) 5 both note that cross-border mergers usually have little or no effect in developed countries because their markets are so competitive. However, the merger of two MNCs could create problems for developing countries where the merged firm could result in a monopoly.

  17. 17.

    UNCTAD, World Investment Report 1997: Transnational Corporations, Market Structure and Competition Policy (UN 1997) 189.

  18. 18.

    UNCTAD, ‘Impact of Cross-Border Mergers and Acquisitions on Development and Policy Issues for Consideration’ Note by UNCTAD Secretariat (2000); and CUTS International ‘Issues Paper on Cross-Border Competition Issues in the Context of the DOHA Agenda’ <http://www.cuts-international.org> accessed 15 June 2017.

  19. 19.

    Josef Drexl, ‘The Development Dimension of Regional Integration and Competition Policy’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 242.

  20. 20.

    OECD, ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 9 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

  21. 21.

    Ibid.

  22. 22.

    World Bank data on private sector participation in the telecommunications sector in Sub-Saharan Africa shows that greenfield investment has been the primary form of FDI. PPIAF, ‘Regional snapshots’ <http://ppi.worldbank.org/explore/ppi_exploreRegion.aspx?regionID=1> accessed 15 June 2017.

  23. 23.

    Grazia Letto-Gillies, Transnational Corporations and International Production: Concepts, Theories and Effects (2nd edn, Edward Elgar Publishing 2012) 16.

  24. 24.

    The Zain Africa/Bharti Airtel acquisition was concluded for US$ 10.7 billion.

  25. 25.

    This sum is the author’s own calculation based on the information available on the value of the cross border acquisitions.

  26. 26.

    PPIAF, ‘Regional snapshots’ <http://ppi.worldbank.org/explore/ppi_exploreRegion.aspx?regionID=1> accessed 15 June 2017.

  27. 27.

    In Gilles Le Blanc and Howard Shelanski, ‘Merger Control and Remedies Policy in the EU and U.S: the Case of Telecommunications Mergers’ (November 2002) 3 <http://www.cerna.ensmp.fr/Documents/GLB-TelecomMergerRemedies.pdf> accessed 15 June 2017, it is argued that cross border mergers make it less appropriate to rely on sector-specific rules to govern competition regulation in the telecommunications sector.

  28. 28.

    Council Regulation (EC) 139/2004 on the control of concentrations between undertaking (the EC Merger Regulation). Notable cross border mergers in the European Union include: Case No IV/JV.1 Telia/Telenor/Schibsted, Commission Decision 1998, published under <http://ec.europa.eu/competition/mergers/cases/decisions/jv1_en.pdf> accessed 15 June 2017; Case No IV/M.1669 Deutsche Telekom/One2One [1999] OJ C 309/3; Case No COMP/M.2016 France Telecom/Orange [2000] OJ C 261/6; and Case No COMP/ M. 1795 Vodafone Airtouch/Mannesmann [2000] OJ C141/19 which have all been assessed by the European Commission enforcing the EC Merger Regulation.

  29. 29.

    Case 135/LM/Dec In the matter between Vodafone Group Plc v Vodacom Group (Pty) Ltd [2009] ZACT 20.

  30. 30.

    The Zambian and South African competition authorities have a lot of experience regulating anti-competitive practices compared to other authorities in the region. The Zambia Competition and Consumer Protection Commission, originally the Zambia Competition Commission has been operational since 1997, while the South Africa Competition Commission has been operational since 1998.

  31. 31.

    MTC, ‘MTC Acquires Celtel International B.V’ Press Release 29 March, 2005 <http://www.zain.com/media-center/press-releases/mtc-completes-acquisition-of-celtel-in-13-african-countries> accessed 15 June 2017.

  32. 32.

    Ibid.

  33. 33.

    ‘MTC concludes acquisition of 100 percent of Celtel’ <http://allafrica.com/stories/200705140897.html> accessed 15 June 2017.

  34. 34.

    Zain, ‘Global Aspirations: Zain Rebrands Celtel Africa Operations’ Press Release, 1 August 2008 <http://www.zain.com/media-centre/press-releases/global-aspirations-zain-rebrands-celtel-africa-operations> accessed 15 June 2017.

  35. 35.

    MTN Group, ‘Chairman’s Report: MTN Group Limited, Annual Report 2005’ <http://annualreport.mtn.com/today_chairman_report.htm> accessed 15 June 2017.

  36. 36.

    MTN Group, ‘Circular to MTN Group Shareholders Regarding Proposed Transaction between MTN International (Mauritius Limited) and Investcom LLC’ (12 June 2006) <https://www.mtn.com/Investors/Circulars/Circulars/investcom_transaction.pdf> accessed 15 June 2017.

  37. 37.

    Ibid.

  38. 38.

    ‘Etisalat Increases Stake in Atlantique Telecom to 70%’ Balancing Act (6 May 2007) <http://www.balancingact-africa.com/news/en/issue-no-353/money/etisalat-increases-s/en> accessed 15 June 2017.

  39. 39.

    Ibid.

  40. 40.

    Vodacom was created through a 50/50 joint venture between Vodafone Group and incumbent operator Telkom SA in 1994.

  41. 41.

    Burkina Faso, Chad, the Republic of Congo, Democratic Republic of Congo, Gabon, Ghana, Kenya, Malawi, Madagascar, Niger, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia.

  42. 42.

    Naazneen Karmali ‘Bharti Airtel Wants Africa’s Ear’ Forbes (New Delhi 06 May 2008) <https://www.forbes.com/2008/05/06/mtn-bharti-airtel-markets-equity-cx_vk_0506markets02.html>; and Naazneen Karmali ‘Bharti Airtel Woos MTN Again’ Forbes (New Delhi 25 May 2009) <http://www.forbes.com/2009/05/25/bharti-mtn-merger-markets-equityindia.html>.

  43. 43.

    Arun Scaria, Ajay Singh Solanki, Sambhav Ranka, Nischal Joshipura, and Siddarth Shah, ‘Bharti-Zain Deal Dissection’ (May 17 2010) <http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Ma%20Lab/Bharti-Zain%20Deal.pdf> accessed 15 June 2017.

  44. 44.

    Sudan and South Sudan did not fall under the umbrella of Zain Africa.

  45. 45.

    Chiwoyu Sinyangwe, ‘Prospects Turn Gloomy as Bharti Takes over Zain’ The Post Zambia (25 May 2010) <http://www.postzambia.com/post-print_article.php?articleId=9558> accessed 15 June 2017.

  46. 46.

    ‘Congo Move to Jam Bharti-Zain Network’ Telegraph (Calcutta, April 13, 2010) <http://www.telegraphindia.com/1100414/jsp/business/story_12337285.jsp> accessed 15 June 2017, which reports that the governments in Gabon, Democratic Republic of Congo, and Congo Brazzaville opposed the sale of Zain’s local subsidiary to Bharti Airtel. The Bharti Airtel acquisition of Zain Africa was also opposed by the government in Tanzania, ‘Gov’t-No Zain Deal’ The Citizen (12 June 2010) <http://allafrica.com/stories/201006141285.html> accessed 15 June 2017.

  47. 47.

    In Mark D J Williams, Rebecca Mayer, and Michael Minges, Africa’s ICT Infrastructure: Building on the Mobile Revolution (World Bank 2011) 11, it has been observed that most FDI flowing into the telecommunications sector has gone to mobile communications and to mobile network infrastructure in particular.

  48. 48.

    Case No. 135/LM/Dec In the matter between Vodafone Group Plc v Vodacom Group (Pty) Ltd [2008] Competition Tribunal of South Africa, para 9.

  49. 49.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Kluwer International 2011) 271.

  50. 50.

    Chantal Dupasquier and Patrick N Osakwe, ‘Foreign Direct Investment in Africa: Performance, Challenges and Responsibilities’ (2005) African Trade Policy Centre 2005/21 1, 8.

  51. 51.

    Mark D J Williams, Rebecca Mayer, and Michael Minges, Africa’s ICT Infrastructure Building on the Mobile Revolution (World Bank 2011) 128.

  52. 52.

    There is a significant amount of literature focusing on this phenomenon, including: Chantal Dupasquier and Patrick N Osakwe, ‘Foreign Direct Investment in Africa: Performance, Challenges and Responsibilities’ (2005) African Trade Policy Centre 2005/21 1; Sheila Page and Dirk Willem te Velde ‘Foreign Direct Investment by African Countries’ (2004) Overseas Development Institute <http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/5739.pdf> accessed 15 June 2017; Dilek Aykut and Andrea Goldstein, ‘Developing Country Multinationals: South–South Investment Comes of Age’ (2006) OECD Development Centre Working Paper 257/2006; and Stephen Gelb, ‘South-South Investment: The Case of Africa’ in Jan Joost Teunissen and Age Akkerman (eds), Africa in World Economy-The National, Regional and International Challenges (The Hague: Fondad 2005) 200-203.

  53. 53.

    Kaoru Kimura, Duncan Wambogo Omole, and Mark Williams, ‘ICT in Sub-Saharan Africa: Success Stories’ in Punam Chuhan-Pole and Manka Angwafo (eds), Yes Africa Can: Success Stories from a Dynamic Continent (World Bank 2011) 343.

  54. 54.

    John M Luiz and Henry Stephan, ‘The Multinationalisation of South African Telecommunications Firms into Africa’ (2012) 38(8) Telecommunications Policy 621, 624.

  55. 55.

    For example, Warid Telecommunications faced difficulties getting enough spectrum to operate in Cote D’Ivoire, ‘Cote D’Ivoire: Warid Telecom Pays for Licence but Can’t Get Enough Spectrum to Operate’ Balancing Act (13 March 2009) <http://www.balancingact-africa.com/news/en/issue-no-445/top-story/cote-d-ivoire-warid/en> accessed 15 June 2017; in Ghana, the fifth telecommunications company Globalcom’s failure to commence operations after being granted a licence was due to the scarcity of spectrum, ‘Spectrum Unavailability and Review of Guidelines Delayed Globalcom’s Operations in Ghana says Minister Iddrisu’, Balancing Act (2 September 2011) <http://www.balancingact-africa.com/news/en/issue-no-570/telecoms/spectrum-unavailabil/en> accessed 15 June 2017. In Uganda, telecom operator, Anupam faced challenges building its network due to scarcity of spectrum in the 900 MHz and 1800 MHZ frequency bands despite having acquired a licence, according to Enrico Calando, ‘Re-farming Frequencies in Rural Areas: A Regulatory Perspective’ (5th ACORN_REDECOM Conference, Lima, 19 May, 2011) 9.

  56. 56.

    Enrico Calando, ‘Re-farming Frequencies in Rural Areas: A Regulatory Perspective’ (5th ACORN_REDECOM Conference, Lima, 19th May, 2011) 9.

  57. 57.

    Sanjaya Lall, ‘Implications of Cross Border Mergers and Acquisitions by TNCs in Developing Countries: A Beginners Guide’ (June 2002) QEH Working Paper Series 88/2002 <http://www3.qeh.ox.ac.uk/pdf/qehwp/qehwps88.pdf> accessed 15 June 2017.

  58. 58.

    However, it has been noted that greenfield investment can also result in a less competitive market structure in the long run. Sanjaya Lall in his article ‘Implications of Cross Border Mergers and Acquisitions by TNCs in Developing Countries: A Beginners Guide’ (June 2002) QEH Working Paper Series-88/2002 notes that greenfield investment may initially increase competition in the market but it might in the long run result in increased market concentration, for example, through crowding out of less efficient local firms with the dangers of turning the market into a more oligopolistic structure.

  59. 59.

    UNCTAD, World Investment Report 1997: Transnational Corporations, Market Structure and Competition Policy (UN 1997) 141.

  60. 60.

    Sandra Marco Colino, Competition Law of the EU and UK (7th edn, Oxford University Press 2011) 348.

  61. 61.

    Phillip Areeda and Herbert Hovenkamp, Fundamentals of Antitrust Law (Wolters Kluwer 2011) 9-5.

  62. 62.

    CUTS International, ‘Issues Paper on Cross-Border Competition Issues in the Context of the DOHA Agenda’ <http://www.cuts-international.org> accessed 15 June 2017.

  63. 63.

    Ibid.

  64. 64.

    Madhav Mehra, ‘Competition Policy and Law-An Overview’ <http://www.Internationalacademyoflaw.org> accessed 15 June 2017.

  65. 65.

    UNCTAD, World Investment Report 1997: Transnational Corporations, Market Structure and Competition Policy (UN 1997) 189. Madhav Mehra, ‘Competition Policy and Law-An Overview’ <http://www.Internationalacademyoflaw.org> accessed 15 June 2017 stresses the need for competition law following the liberalisation of FDI as the impact of FDI is not always pro-competitive. As Madhav Mehra points out, very often foreign direct investment takes the form of a foreign corporation acquiring a domestic enterprise or establishing a joint venture with one. By making such an acquisition the foreign investor may substantially lessen competition and gain a dominant position in the relevant market thus charging higher prices.

  66. 66.

    Jonathan L Muwonge and Emanuel Gomes, ‘Analysis of the Acquisition Process of Uganda Telecom by LAP Greencom’ (2007) 1(1) MIBES Transactions Online, 108.

  67. 67.

    Ibid.

  68. 68.

    Ibid.

  69. 69.

    This merger is discussed in Sect. 5.1.1 of this study.

  70. 70.

    Faridah Kulabako and Solomon Arinaitwe, ‘UCC Okays Airtel, Warid Deal as Subscribers are Reassured’ Daily Monitor (Kampala, 9 May 2013) <http://www.monitor.co.ug/Business/Technology/UCC-okays-Airtel--Warid-deal-as-subscribers-are-reassured/-/688612/1846494/-/u28gpy/-/index.html> accessed 15 June 2017.

  71. 71.

    Cross-border mergers in the European Union have been assessed under the Council Regulation (EC) 139/2004 on the control of concentrations between undertakings [2004] OJ L24/1 (the EC Merger Regulation). The European Commission has reviewed a number of cross-border mergers in the telecommunications sector under the EC Merger Regulation including: Case No IV/JV.1 Telia/Telenor/Schibsted, Commission Decision 1998, published under <http://ec.europa.eu/competition/mergers/cases/decisions/jv1_en.pdf> accessed 15 June 2017; Case No IV/M.1669 Deutsche Telekom/One2One [1999] OJ C 309/3; Case No COMP/M.2016 France Telecom/Orange [2000] OJ C 261/6; and Case No COMP/ M. 1795 Vodafone Airtouch/Mannesmann [2000] OJ C141/19. In South Africa, jurisdiction of merger assessment is the exclusive purview of the Competition Commission and the Competition Tribunal which notably reviewed the Vodacom Group/Vodafone Group acquisition in 2008, Case No. 135/LM/Dec In the matter between Vodafone Group Plc v Vodacom Group (Pty) Ltd [2009] ZACT 20.

  72. 72.

    Gilles Le Blanc and Howard Shelanski, ‘Merger Control and Remedies Policy in the EU and U.S: the Case of Telecommunications Mergers’ (November 2002) 3 <http://www.cerna.ensmp.fr/Documents/GLB-TelecomMergerRemedies.pdf> accessed 15 June 2017 who observe that it is preferable to rely on competition law rather than sector-specific rules when dealing with cross-border mergers.

  73. 73.

    OECD ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 10 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

  74. 74.

    Ibid.

  75. 75.

    Ibid.

  76. 76.

    Ibid, 9.

  77. 77.

    Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al. (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 294.

  78. 78.

    Notable literature includes: Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) which focuses on merger control regimes in Argentina and Brazil and discusses the extent to which merger control in those two countries can serve as a disincentive for FDI through cross-border mergers; and Manish Agarwal, ‘Does Implementation of Merger Regulation Impede Inbound Cross-Border Mergers? Analysis of Developed versus Developing Countries’ in Richard Whish and Christopher Townley (eds), New Competition Jurisdictions: Shaping Policies and Building Institutions (Edward Elgar 2012) who analyses the effects of national merger regulation regimes on in bound cross border mergers in host countries.

  79. 79.

    See Romeo Kariga, Jabulani Ngobeni, and Mfundo Ngobese, ‘Is South Africa a Good Investment Destination? A Relook at Conditions in Merger Case’ (6th Annual Conference on Competition Law, Economics and Policy, Johannesburg, September 2012) <http://www.compcom.co.za/assets/Uploads/events/SIxth-Annual-Competition-Law-Economics-and-Policy-Conference-in-South-Africa-2012/NewFolder-3/Is-South-Africa-a-good-investment-destination-22.08.2012-F.PDF> accessed 15 June 2017; Marumo Nkomo and Magdaleen van Wyk, ‘Public Interest Criteria in Mergers-Protectionist Measures’ (6th Annual Conference on Competition Law, Economics and Policy, Johannesburg, September 2012) <http://www.compcom.co.za/assets/Uploads/events/Sixth-Annual-Competition-Law-Economics-and-Policy-Conference-in-South-Africa-2012/NewFolder-3/Publicinterestcriteriainmergersprotectionistmeasuressubmissionformatted1.pdf> accessed 15 June 2017; and John Oxenham, ‘Balancing Public Interest Merger Considerations Before Sub-Saharan African Competition Jurisdictions with the Quest for Multi-Jurisdictional Merger Control Certainty’ (2012) 9(211) US-China Law Review 211. These articles focus on South Africa’s competition authorities application of the public interest consideration provided for in the South Africa Competition Act when reviewing mergers involving a foreign interest.

  80. 80.

    Manish Agarwal, ‘Does Implementation of Merger Regulation Impede Inbound Cross-Border Mergers? Analysis of Developed versus Developing Countries’ in Richard Whish and Christopher Townley (eds), New Competition Jurisdictions: Shaping Policies and Building Institutions (Edward Elgar 2012) 234.

  81. 81.

    Ibid. The compliance costs in different countries faced by merging parties involved in a cross-border transaction is also recognised in Dimitris Liakopoulos and Armando Marsilia, The Regulation of Transnational Mergers in International and European Law (Martinus Nijhoff 2010) 3.

  82. 82.

    PwC, ‘A Tax on Mergers? Surveying the Time and Costs to Business of Multi-Jurisdictional Merger Reviews’, A Study Commissioned by the International Bar Association and the American Bar Association (June 2003) <http://www.globalcompetitionforum.org/PWC_Merger_Cost_Study_Report_Final_2003_Jun.pdf> accessed 15 June 2017.

  83. 83.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 342.

  84. 84.

    OECD, ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 10 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

  85. 85.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 342.

  86. 86.

    See Sect. 4.5.1 which discusses the dominant presence of subsidiaries of MTGs in the three main markets, fixed-line, mobile and internet.

  87. 87.

    A regional group aimed at economic integration made up of Burundi, Kenya, Rwanda, South Sudan, Tanzania, and Uganda.

  88. 88.

    Examples of MNCS telecommunications operators in more than one member state of the EAC in 2015: MTN: Rwanda and Uganda; Airtel: Kenya, Tanzania, Uganda; Orange: Kenya and Uganda, Tigo: Rwanda and Tanzania; and Vodafone: Tanzania and Kenya.

  89. 89.

    Communications Act 2013, s 53(1).

  90. 90.

    Ibid, s 53(2)(c).

  91. 91.

    Fair Competition Regulations 2005, SI 2005/24, reg 6(5).

  92. 92.

    Communications Acts 2013, s 2.

  93. 93.

    Fair Competition Regulations 2005, SI 2005/24, reg 6(6).

  94. 94.

    Draft Competition Bill 2004, cl 46(1).

  95. 95.

    Fair Competition Regulations 2005, SI 2005/24, reg 5.

  96. 96.

    Ibid, reg 6(6).

  97. 97.

    ICN Merger Working Group, ‘Setting Notification Thresholds for Merger Review’ (April 2008) <http://www.internationalcompetitionnetwork.org/uploads/library/doc326.pdf> accessed 15 June 2017.

  98. 98.

    Draft Competition Bill, cl. 46(1) and (2).

  99. 99.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 342.

  100. 100.

    Commission, ‘Mergers: Merger Regulation Contributes to More Efficient Merger Control in EU’ Press Release18 June 2009 IP/09/963. The turnover threshold is articulated in Article 5 of the Merger Regulation.

  101. 101.

    Draft Competition Bill, cl 46(1) and (2).

  102. 102.

    Ibid, cl 46 proposed new clauses para. 1.

  103. 103.

    Dimitris Liakopoulos and Armando Marsilia, The Regulation of Transnational Mergers in International and European Law (Martinus Nijhoff Publishers 2010) 104.

  104. 104.

    Ibid.

  105. 105.

    Ibid.

  106. 106.

    South Africa Competition Act 1998, s 11(5).

  107. 107.

    Ibid, s 13 (1).

  108. 108.

    South Africa Competition Commission, ‘Merger Thresholds: When Must the Competition Commission be Notified of a Merger?’ <http://www.compcom.co.za/merger-thresholds> accessed 15 June 2017 (with is the latest update of merger thresholds on 1 April, 2009).

  109. 109.

    Ibid, these mergers are categorised as intermediate mergers which are defined in the South Africa Competition Act, section 11 (5), as a merger or proposed merger with a value between the lower and higher threshold.

  110. 110.

    South Africa Competition Commission, ‘Merger Thresholds: When Must the Competition Commission be Notified of a Merger?’ <http://www.compcom.co.za/merger-thresholds> accessed 15 June 2017. Mergers falling within this financial threshold are large mergers under the South Africa Competition Act, section 11(5) which defines a large merger as a merger with a value at or above the higher threshold.

  111. 111.

    Zambia Competition and Consumer Protection Act 2010, s 25 (2).

  112. 112.

    Charles Carter and Kayla de Oliveira, ‘New Merger Notification Thresholds to be Introduced’ <http://www.howwemadeitinafrica.com/new-merger-notification-thresholds-to-be-introduced-in-zambia/13080> accessed 15 June 2017.

  113. 113.

    Dimitris Liakopoulos and Armando Marsilia, The Regulation of Transnational Mergers in International and European Law (Martinus Nijhoff Publishers 2010) 104.

  114. 114.

    Ibid.

  115. 115.

    For example, if compared to the thresholds in Zambia which has an economy size similar to Uganda’s. According to World Bank data, Zambia had a GDP of US$20.59 billion in 2012 close to Uganda’s GDP of US$ 20.03 billion.

  116. 116.

    Draft Competition Bill, cl 46(2)(a).

  117. 117.

    Prior to the publication of the current merger thresholds by the South Africa Competition Commission on April 1 2009, its merger thresholds determination of the February 2001 applied. The lower threshold was South Africa Rand 30 million (US$ 2.2 million) for target firms assets or turnover up from South Africa Rand 5 million (US$ 369,566) and for merging parties combined assets or turnover South Africa Rand 200 million US$ (14.7 million) up from South Africa Rand 50 million (US$ 3.6 million). The higher threshold has remained unchanged at South Africa Rand 100 million for target firms assets or turnover 100 million (US$ 7.3 million) and South Africa Rand 3.6 million (US$ 258.6 million) for merging parties combined assets or turnover. This is according to South Africa Competition Commission and Competition Tribunal, ‘Ten Years of Enforcement by the South Africa Competition Authorities: Unleashing Rivalry 1999-2009’ <http://www.compcom.co.za/assets/Uploads/AttachedFiles/MyDocuments/10year.pdf> accessed 15 June 2017.

  118. 118.

    Zambia Competition and Consumer Protection Act 2010, s 27.

  119. 119.

    Ibid, s 27 (1)(d).

  120. 120.

    OECD, ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 10 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

  121. 121.

    Fair Competition Regulations 2005, SI 2005/24, reg 6(6).

  122. 122.

    The financial thresholds are defined in Clause 46(2)(a)(i) and (ii).

  123. 123.

    The financial thresholds are defined in Clause 46 (2)(a)(iv).

  124. 124.

    The financial thresholds are defined in Clause 46 (2)(a)(v).

  125. 125.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 14 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  126. 126.

    Ibid.

  127. 127.

    For example, the EU Council Regulation (EC) 139/2004 of January 2004 on the control of concentrations between undertakings (the EU Merger Regulation), in recital 34, justifies mandatory notification as necessary in order to ensure effective control.

  128. 128.

    Fair Competition Regulations 2005, SI 2005/24, reg 6(6).

  129. 129.

    Sandra Marco Colino, Competition Law of the EU and UK (7th edn, Oxford University Press 2011) 353.

  130. 130.

    Evaluating a merger requires access to a substantial amount of information which is usually not available in the public domain. Voluntary merger notification makes it more challenging for an authority to get information. As explained in Martyn D Taylor and Mallesons Stephen Jacques, International Competition Law: A New Dimension for the WTO? (Cambridge University Press 2006) 86, while voluntary pre-merger notification places the burden of compliance on merging parties rather than the competition authorities, such a regime reduces the flow of information to competition authorities.

  131. 131.

    The Draft Competition Bill 2004, cl 45(1).

  132. 132.

    The EU Council Regulation (EC) 139/2004 of January 2004 on the control of concentrations between undertakings, Art 4 (1).

  133. 133.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 14 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  134. 134.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 269 cites a number of examples in Brazil, the notable one being Owens Corning-Saint, Compagnie de Saint Gobain. Relatório, AC n.08012.001885/2007-11. In that case the concentration was notified to the Brazilian competition authorities on 13 March 2007, a few weeks after the signature of the acquisition agreement was concluded. The concentration was also notified to the European Commission and the US FTC, which released their decisions on the same day, on 26 October 2007. After having received the authorisation from the European Commission and FTC, the merging parties implemented the concentration on 1 November, 2007, even though the merger review process was still ongoing in Brazil.

  135. 135.

    OECD, ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 258 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

  136. 136.

    Ibid.

  137. 137.

    Draft Competition Bill, cl 39.

  138. 138.

    Zambia Competition and Consumer Protection Act 2010, s 37(a).

  139. 139.

    EU Council Regulation (EC) 139/2004 of January 2004 on the control of concentrations between undertakings, Art14 (2)(a).

  140. 140.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 343.

  141. 141.

    Michal Gal, ‘Antitrust in a Globalized Economy: The Unique Enforcement Challenges Faced by Small and Developing Jurisdictions’ (2010) 33(2) Fordham International Journals 1, 3.

  142. 142.

    Fair Competition Regulations 2005, SI 2005/24, sch, para 2(a).

  143. 143.

    This is based on the fact that Communications Act, section 53(2) prohibits acts or omissions effecting anti-competitive changes in the market structure, particularly anti-competitive mergers and acquisitions in the communications sector.

  144. 144.

    Fair Competition Regulations 2005, SI 2005/24, reg 6(5).

  145. 145.

    Draft Competition Bill, cl 46(1).

  146. 146.

    Ibid, cl 46(6).

  147. 147.

    Zambia Competition and Consumer Protection Act 2010, s 30.

  148. 148.

    South Africa Competition Act 1998, s 12A.

  149. 149.

    Ibid, s 12A (2).

  150. 150.

    See details of the merger in Sect. 5.1.4 of this chapter.

  151. 151.

    South Africa Competition Commission, ‘Competition Commission Approves Vodacom/Vodafone Merger’ 16 February, 2009, Press Statement; and Case No. 135/LM/Dec In the matter between Vodafone Group Plc v Vodacom Group (Pty) Ltd [2009] ZACT 20, respectively.

  152. 152.

    Case No. 135/LM/Dec In the matter between Vodafone Group Plc v Vodacom Group (Pty) Ltd [2009] ZACT 20, para 9.

  153. 153.

    Botswana, Competition Act 2009, s 59(2)(e) and (f), Malawi, Competition and Fair Trading Act, Act 1998, s38(1)(b)(vi) and (vii), Namibia Competition Act of 2003, s 47(2)(c), (e) and (f), Swaziland, Competition Act 2007, s 17(2)(h)(i), (ii), and (iii), Tanzania Fair Competition Act 2003, s 13(1)(b)(vi).

  154. 154.

    Zambia Competition and Consumer Protection Act 2010, s 31.

  155. 155.

    South Africa Competition Act 1998, s 12A (3).

  156. 156.

    David Lewis, ‘The Role of Public Interest in Merger Valuation’ (International Competition Network, First Annual Conference, Naples, September 2002) 2. <http://www.comptrib.co.za/assets/Uploads/Speeches/lewis5.pdf> accessed 15 June 2017.

  157. 157.

    Ibid.

  158. 158.

    Ibid.

  159. 159.

    Case No. 75/ LM/Nov.10 In the matter between Wal-Mart Stores Inc and Massmart Holdings Limited [2011] ZACT.

  160. 160.

    Ibid, para 18.

  161. 161.

    Case No. 75/ LM/Nov.10 In the matter between Wal-Mart Stores Inc and Massmart Holdings Limited [2011] ZACT 41 (CT). The ruling of the Competition Tribunal was appealed before the Competition Appeal Court by the Government of South Africa, Case No 111/CAC/Jun 1 In the matter between the Minister of Economic Development, and others v the Competition Tribunal, the Competition Commission South Africa, Wal-Mart Stores Inc., Massmart Holdings Ltd, and others [2012] ZACAC 2, published under <http://www.saflii.org/za/cases/ZACAC/2012/2.html> accessed 15 June 2017. The Competition Appeal Court upheld the Competition Tribunal’s ruling. However, the court acknowledged that significant public interest concerns arose from the merger observing that the introduction of Wal-mart, the largest retailer in the world, to the South African economy could pose significant challenges for participation of South African producers in global value chains which is dominated by Wal-mart.

  162. 162.

    Wal-mart/Massmart merger had a cross-border dimension with Massmart having business operations Botswana, Ghana, Malawi, Mozambique, Namibia, Nigeria, Tanzania, Uganda, and Zambia.

  163. 163.

    Notice of Determination by Commission (9 February 2011).

  164. 164.

    Ibid.

  165. 165.

    Wal-Mart Stores Inc v Chairperson of Namibian Competition Commission and Others (A 61/2011) [2011] NAHC 165.

  166. 166.

    Namibia Competition Commission and Another v Wal-Mart Stores Inc. [2011] NASC 11.

  167. 167.

    Sun Reporter, ‘Wal-Mart Merger Approved with Conditions’ Namibian Sun (Windhoek, 6 March 2012) <http://www.namibiansun.com/content/national-news/wal-mart-merger-approved-conditions> accessed 15 June 2017.

  168. 168.

    The South Africa Competition Tribunal has voiced such concerns in Shell South Africa (Pty) Ltd v Tepco Petroleum (Pty) Ltd, 66/LM/Oct01 (22 February 2002) para 58 and 41/LM/Jul10 Metropolitan Holdings Limited and Momentum Group Ltd Competition Tribunal [2010] CPLR 337 CT. There have been some articles discussing public interest and its impact on FDI flows, see Romeo Kariga, Jabulani Ngobeni, and Mfundo Ngobese, ‘Is South Africa a Good Investment Destination? A Relook at Conditions in Merger Case’ (6th Annual Conference on Competition Law, Economics and Policy, Johannesburg, September 2012) <http://www.compcom.co.za/assets/Uploads/events/SIxth-Annual-Competition-Law-Economics-and-Policy-Conference-in-South-Africa-2012/NewFolder-3/Is-South-Africa-a-good-investment-destination-22.08.2012-F.PDF> accessed 15 June 2017; Marumo Nkomo and Magdaleen van Wyk, ‘Public Interest Criteria in Mergers-Protectionist Measures’ (6th Annual Conference on Competition Law, Economics and Policy, Johannesburg, September 2012) <http://www.compcom.co.za/assets/Uploads/events/SIxth-Annual-Competition-Law-Economics-and-Policy-Conference-in-South-Africa-2012/NewFolder-3/Publicinterestcriteriainmergersprotectionistmeasuressubmissionformatted1.pdf> accessed 15 June 2017; and John Oxenham, ‘Balancing Public Interest Merger Considerations Before Sub-Saharan African Competition Jurisdictions with the Quest for Multi-Jurisdictional Merger Control Certainty’ (2012) 9/211 US-China Law Review 211.

  169. 169.

    Ngobeni and Mfundo Ngobese, ‘Is South Africa a Good Investment Destination? A Relook at Conditions in Merger Case’ (6th Annual Conference on Competition Law, Economics and Policy, Johannesburg, September 2012) <http://www.compcom.co.za/assets/Uploads/events/SIxth-Annual-Competition-Law-Economics-and-Policy-Conference-in-South-Africa-2012/NewFolder-3/Is-South-Africa-a-good-investment-destination-22.08.2012-F.PDF> accessed 15 June 2017; and John Oxenham, ‘Balancing Public Interest Merger Considerations Before Sub-Saharan African Competition Jurisdictions with the Quest for Multi-Jurisdictional Merger Control Certainty’ (2012) 9/211 US-China Law Review 211.

  170. 170.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 342.

  171. 171.

    Ibid.

  172. 172.

    Zambia Competition and Consumer Protection Act 2010, s 32.

  173. 173.

    South Africa Competition Act 1998, ss 13(5) and 14(1).

  174. 174.

    Ibid, s 14A (1)(b).

  175. 175.

    Ibid, s 14A(2).

  176. 176.

    European Commission, ‘Merger Control Procedure’ <http://ec.europa.eu/competition/mergers/procedures_en.html> accessed 15 June 2017.

  177. 177.

    Ibid.

  178. 178.

    Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al (eds) Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 294.

  179. 179.

    Email from UCC personnel in the Legal Department to Author (22 March 2013).

  180. 180.

    Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 291.

  181. 181.

    Martyn D Taylor and Mallesons Stephen Jacques, International Competition Law: A New Dimension for the WTO? (Cambridge University Press 2006) 86.

  182. 182.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 15 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017; and Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al. (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 295 who advocate for the use of regional competition agreements to mitigate the problems faced in gathering evidence located elsewhere.

  183. 183.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 345; and UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 18 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017. With regard to Sub-Saharan Africa specifically, see Nelly Sakata, ‘Are Southern African Competition Law Regimes Geared Up for Effective Cooperation in Competition Law Enforcement?’ (Fifth Annual Competition Law Conference, Johannesburg, October 2011); and George K. Lipimile, ‘The COMESA Regional Competition Regulations’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 205.

  184. 184.

    Mario Monti, ‘Cooperation Between Competition Authorities-A Vision for the Future’ in Clifford A. Jones and Mitsuo Matsushita (eds.), Competition Policy in the Global Trading System, (Kluwer Law International, 2002) 77; The Japan Fair Trading Office, ‘Cross border Merger Control in Japan’ <http://www.jftc.go.jp/en/policy_enforcement/speeches/110217.html> accessed 15 June 2017; and European Commission, ‘European Competition Network: Overview’ <ec.europa.eu/competition/ecn/index_en.html> accessed 15 June 2017.

  185. 185.

    While South Africa, Zambia and Zimbabwe have had operational competition authorities since the late 1990s, in the majority of countries, competition authorities only became operational in the mid to late 2000s. Examples include the Malawi’s competition agency which was operational in 2005; Tanzania’s agency became active in 2007 while the agencies in Botswana, Mauritius, Namibia and Seychelles became operational in 2009.

  186. 186.

    Nelly Sakata, ‘Are Southern African Competition Law Regimes Geared Up for Effective Cooperation in Competition Law Enforcement?’ (Fifth Annual Competition Law Conference, Johannesburg, October 2011).

  187. 187.

    According to interview with Ann Rita Ssemboga, (former) Economist, UCC (Kampala, Uganda 7 December 2011).

  188. 188.

    See, for example, Mario Monti, ‘Cooperation Between Competition Authorities-A Vision for the Future’ in Clifford A. Jones and Mitsuo Matsushita (eds.), Competition Policy in the Global Trading System (Kluwer Law International 2002); Dimitris Liakopoulos and Armando Marsilia, The Regulation of Transnational Mergers in International and European Law (Martinus Nijhoff 2010) 120-128; UNCTAD, ‘Review of the Experience Gained So Far in Enforcement of Cooperation, Including at the Regional Level’, Note by the UNCTAD Secretariat (2011) <http://unctad.org/en/docs/ciclpd10_en.pdf> accessed 15 June 2017; and UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 15 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  189. 189.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 15 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  190. 190.

    Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 294.

  191. 191.

    UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 6 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017.

  192. 192.

    Ibid, 8.

  193. 193.

    UNCTAD, ‘Roundtable on Cross- Border Merger Control: Challenges for Developing Countries, Contribution from the United States’ (2011) <http://www.oecd.org/competition/mergers/50114086.pdf> accessed 15 June 2017.

  194. 194.

    See UNCTAD, ‘Cross-Border Anti-competitive Practices: The Challenges for Developing Countries and Economies in Transition’, Note by the UNCTAD Secretariat (April 2012) 15 <http://unctad.org/meetings/en/SessionalDocuments/ciclpd16_en.pdf> accessed 15 June 2017 which notes that only very few large jurisdictions have full control over large-scale international mergers, and they impose remedies to address anti-competitive effects on their markets.

  195. 195.

    Ibid, 9.

  196. 196.

    Dimitris Liakopoulos and Armando Marsilia, The Regulation of Transnational Mergers in International and European Law (Martinus Nijhoff 2010) 117.

  197. 197.

    OECD, ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 11 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

  198. 198.

    Dimitris Liakopoulos and Armando Marsilia, The Regulation of Transnational Mergers in International and European Law (Martinus Nijhoff 2010) 120-125 discuss the significance of bilateral co-operation between the EU and the United States with regard to cross-border merger review.

  199. 199.

    Zambia and Zimbabwe have a joint trade protocol for the exchange of information in competition cases.

  200. 200.

    UNCTAD, ‘Review of the Experience Gained So Far in Enforcement of Cooperation, Including at the Regional Level’, Note by the UNCTAD Secretariat (2011) 18 <http://unctad.org/en/docs/ciclpd10_en.pdf> accessed 15 June 2017.

  201. 201.

    George K Lipimile, ‘The COMESA Regional Competition Regulations’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar, 2012) 211.

  202. 202.

    Ibid, 212-213.

  203. 203.

    Agreement on Trade, Development and Cooperation between the European Community and the Republic of South Africa [1999] OJ L311/3.

  204. 204.

    UNCTAD, ‘Recent Important Cases Involving More Than One Country: Report by the UNCTAD Secretariat’ (2006) TD/B/COM.2/CLP/53 12.

  205. 205.

    See, for example, ‘FTC Order Prevents Anti-Competitive Effects of Pfizer’s Acquisition of Wyeth’ FTC press release 10/14/2009 <http://www.ftc.gov/opa/2009/10/pfizer.shtm> accessed 15 June 2017, where the FTC acknowledges cooperating with South Africa which was also reviewing the Pfizer/Wyeth acquisition.

  206. 206.

    Nelly Sakata, ‘Are Southern African Competition Law Regimes Geared Up for Effective Cooperation in Competition Law Enforcement?’ (Fifth Annual Competition Law Conference, Johannesburg October 2011).

  207. 207.

    Marco Botta, Merger Control Regimes in Emerging Economies: A Case Study on Brazil and Argentina (Wolters Kluwer 2011) 344 observes that mature competition regimes are reluctant to conclude bilateral agreements with newly-established competition authorities in developing countries, due to the uncertainty concerning the treatment of information transferred to the latter.

  208. 208.

    UNCTAD, ‘Review of the Experience Gained So Far in Enforcement of Cooperation, Including at the Regional Level’, Note by the UNCTAD Secretariat (2011) 7 <http://unctad.org/en/docs/ciclpd10en.pdf> accessed 15 June 2017.

  209. 209.

    Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 291.

  210. 210.

    Ibid, 293.

  211. 211.

    Josef Drexl, ‘The Development Dimension of Regional Integration and Competition Policy’ in Josef Drexl, et al (eds) Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 242.

  212. 212.

    SADC Declaration on Competition and Consumer Policies 2009, art 1(a).

  213. 213.

    Ibid, preamble.

  214. 214.

    Michal S Gal and Inbal Faibish Wassmer, ‘Regional Agreements of Developing Jurisdictions: Unleashing the Potential’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 293.

  215. 215.

    Nelly Sakata, ‘Are Southern African Competition Law Regimes Geared Up for Effective Cooperation in Competition Law Enforcement?’ (Fifth Annual Competition Law Conference, Johannesburg, October 2011) 2 <http://www.compcom.co.za/wp-content/uploads/2014/09/African-Regional-cooperation-PaperFinal-27-Sept-11-.pdf> accessed 15 June 2017.

  216. 216.

    Nelly Sakata, ‘Are Southern African Competition Law Regimes Geared Up for Effective Cooperation in Competition Law Enforcement?’ (Fifth Annual Competition Law Conference, Johannesburg, October 2011) 11 <http://www.compcom.co.za/wp-content/uploads/2014/09/African-Regional-cooperation-PaperFinal-27-Sept-11-.pdf> accessed 15 June 2017.

  217. 217.

    Ibid.

  218. 218.

    Ibid, 10.

  219. 219.

    Mor Bakhoum and Julia Molestina, ‘Institutional Coherence and Effectiveness of a Regional Competition Policy: the Case of West African Economies and Monetary Union (WAEMU)’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar, 2012) 97.

  220. 220.

    Ibid.

  221. 221.

    Ibid.

  222. 222.

    George K. Lipimile, ‘The COMESA Regional Competition Regulations’ in Josef Drexl, et al (eds), Competition Policy and Regional Integration in Developing Countries (Edward Elgar 2012) 215 makes this argument with regard to Member States of COMESA without national competition laws benefiting from the regulation of cross border anti-competitive practices through the COMESA Competition Regulations.

  223. 223.

    Article 23(1) of the Treaty for the Establishment of the East African Community of 2000.

  224. 224.

    Hans-Georg Petersen, ‘Tax Systems and Tax Harmonisation in the East African Community (EAC)’ Report for EAC/GTZ Program ‘Support to the EAC Integration Process’ Finanzwissenschaftliche Diskussionsbeiträge, No. 60 <http://nbn-resolving.de/urn:nbn:de:kobv:517-opus-44693> accessed 15 June 2017.

  225. 225.

    East African Community Competition Act 2006, s 4(1).

  226. 226.

    Ibid, s 37.

  227. 227.

    Ibid, pt IV.

  228. 228.

    Ibid, s 11.

  229. 229.

    Rwanda and Uganda are yet to enact national competition laws, while Burundi’s competition law is not yet operational. Kenya and Tanzania are the only two countries with operational national competition laws.

  230. 230.

    Official Gazette of COMESA, Volume 17 No.12, 20 November 2012.

  231. 231.

    COMESA Competition Regulations 2004, art. 3(1).

  232. 232.

    Ibid, art. 6.

  233. 233.

    Ibid, art 12.

  234. 234.

    Ibid, art 24.

  235. 235.

    Ibid, art. 25(2).

  236. 236.

    Ibid, art 26.

  237. 237.

    COMESA Rules on Determination of Merger Notification Threshold 2012, r 4.

  238. 238.

    This can be interpreted in the Regulations definition of the scope of application, art 3(1) which covers all anti-competitive conduct of COMESA dimension.

  239. 239.

    COMESA Competition Regulations 2004, art 24 (8).

  240. 240.

    Hogan Lovell, ‘COMESA-New Pan African Merger Control Regime’ Antitrust Competition and Economic Regulation E-Alert, 11 February 2013 <http://ehoganlovells.com/cv/bbbe35cf8acfceb197986f0991d0331661b16683> accessed 15 June 2017.

  241. 241.

    COMESA Competition Regulations 2004, art 3(3).

  242. 242.

    Muthoki Mumo, ‘Authority criticises COMESA Arm Over Rollout of Competition Rules’ Daily Nation (Nairobi 17 March 2013) <http://www.nation.co.ke/business/news/Authority-criticises-Comesa-over-rollout-of-competition-rules/-/1006/1722692/-/127w7qb/-/index.html> accessed 15 June 2017; and George Omondi and David Herbling, ‘Conflict of Local and COMESA Laws Holds Up Firms Mergers’ Daily Nation (Nairobi, 28 January 2013) <http://www.businessdailyafrica.com/Agency-turf-wars-with-Comesa-freeze-mergers/-/539546/1678308/-/107ygai/-/index.html> accessed 15 June 2017.

  243. 243.

    OECD, ‘Policy Roundtables Cross-Border Merger Control: Challenges for Developing and Emerging Economies’ (2011) 9 <http://www.oecd.org/daf/competition/mergers/50114086.pdf> accessed 15 June 2017.

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Alemu, R. (2018). Foreign Direct Investment in Telecommunications Sector and Regulation of Anti-Competitive Behaviour: The Specific Case of Cross-Border Mergers. In: The Liberalisation of the Telecommunications Sector in Sub-Saharan Africa and Fostering Competition in Telecommunications Services Markets. Munich Studies on Innovation and Competition, vol 6. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-55318-3_5

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