Printed in the Business Monday newspaper on April 25th, 2011
What if a Barbadian company takes issue with the conduct of a Trinidadian company, because it perceives that the conduct of the Trinidadian company is likely to unfairly affect the operation of its business? Who can that Barbadian company turn to for assistance that would ensure that the matter is at least investigated and that fair competition is restored to the market? The Barbadian company can contact the Barbados Fair Trading Commission which while not having jurisdiction over the conduct of the Trinidadian company, should be able to forward the matter to the CARICOM Competition Commission (CCC) which has jurisdiction over cross-border anticompetitive conduct and may therefore have jurisdiction in the matter.
In theory this is what should happen. The facts are that this scenario is unlikely to play itself out as it should for several reasons. First, Trinidad and Tobago (T&T) has not yet established its competition authority. The country passed its law in 2006, but to date it has not established the requisite authority to administer that law. This circumstance is not unusual regionally because only Barbados and Jamaica, have so far established the requisite authorities to administer their competition laws as required under the Treaty of Chaguaramas. None of the other member states have functional competition authorities in place. Guyana also passed Competition legislation in 2006, but their Competition authority though further advanced than that of T&T is still not fully operational. Guyana has in principle established an authority and has a set of part-time commissioners in place, but they have not yet agreed on the technical staffing for the organisation making it non-operational. Suriname, Belize and the OECS member states are in a similar state of un-readiness. None of these member states have as yet passed their laws so naturally do not have authorities that address issues of unfair competition. The OECS has agreed to the establishment of a sub-regional authority that will perform the function of the national authority for the individual states, but to date this is merely a written commitment.
The CCC, which is located in Suriname, is supposed to sit at the centre of the regional competition framework, but has had its share of challenges. It was established in 2008 with seven commissioners and has had significant difficulty in recruiting highly technical personnel to man its operations. It is currently still not fully staffed and therefore not adequately operational.
What therefore are the implications for the company in our initial scenario? The Barbados Fair Trading Commission would seek to investigate the matter but its ability to get a comprehensive solution would be limited given its lack of jurisdictional power to address cross-border unfair conduct. Under a fully operational CARICOM competition network where all the member states would have fulfilled their commitments, the Treaty states that the company in Barbados could draw the matter to the attention of the Barbados Fair Trading Commission, which would then request the CCC to commence an investigation into the matter.
The CCC would then call on the T&T Competition authority to facilitate the necessary part of the investigation to fully determine the matter.
The CCC would then give the T&T company alleged to have engaged in the anti-competitive activity, an opportunity to defend its interest. If after hearing the defence, the CCC is of the view that the company has engaged in anti-competitive conduct, the CCC would require the company to take appropriate action to correct the breach. It should be noted that a fully functioning CCC will have all of the powers as set out in our national legislations, and in addition the CCC also has powers not only to order companies to cease and desist anti-competitive conduct, but the power to order payment of compensation to persons affected by the conduct (for example to the Barbadian firm in our scenario). Further, the CCC will be able to impose fines on the offending company for breaching the rules of competition.
This would be a much healthier resolution for all affected parties and for the furtherance of our regional economic objectives. It is therefore important that the member states, which are still at varying stages of implementation of the rules of competition, establish the requisite rules and enforcement authorities to allow companies their right to redress in regard to unfair market practices throughout the region.