1. INFORMATION SHARING IN CARTEL by Thula Kaira - CEO Presentation to the ICN 2012 Cartel Wokshop - Mini Plenary 4 on Information Exchange Panama, Panama City 2 – 4 October 2012

2. PRESENTATION OUTLINE 1.Introduction 2.Botswana’s Legal Framework on Information Sharing 3.Regional agreements on information sharing 4.Botswana’s information sharing experiences 5.Hypothetical Case Application 6.Challenges

3. 1. INTRODUCTION  Information sharing has been a common feature in other matters of regional trade arrangements such as non-tariff & tariff related barriers  With regional/multilateral trading system comes along cross-border and global cartel activity too  Information sharing in competition is critical for: Cartel detection Cartel Investigation Cartel prosecution Sending a unified anti-trust voice to cartelists

4. 2. BOTSWANA’S LEGAL BASE ON INFORMATION SHARING Under Section 77 of the Competition Act, the Competition Authority may investigate any matter falling within the scope of this Act and make an appropriate determination of the case where a competition authority duly constituted in another State so requests and where that authority proves to the Authority that there are reasonable grounds to believe that anticompetitive practices in Botswana are damaging competition in the other State.

5. The foregoing applies where Botswana has entered into an agreement with that State to the effect that, on a basis of reciprocity, each party to the agreement will exercise the principle of comity in investigating and determining cases falling within its jurisdiction at the request of the other party. Section 77 presupposes a the “entering of an agreement” and on a “basis of reciprocity” This provides a formalised way of info sharing, but does not necessarily forbid informal methods

6. CONFIDENTIAL INFORMATION can still be shared Under Section 74, while a Commissioner, Authority staff, or adhoc inspector can not disclose confidential information that has been obtained under the Act while the business continues to be carried on or during the lifetime of the individual, info disclosure can be made if info is: already in the public domain; made to the competition authority of another country in connection with a request by that country for assistance in terms of a formal agreement (section 77).

7. 3. REGIONAL ARRANGEMENTS IN COMPETITION POLICY COOPERATION 7 Informal/non-binding information exchanges Formal/binding information exchanges Two aspects of cooperation seem to have emerged in Africa, like elsewhere - both at bilateral or multilateral levels:

8. INFORMAL Collegial- based Cross- border necessities Southern & Eastern Africa Competition Forum Africa Competition Forum 8

9. FORMAL Bilateral Trade Agreements (Botswana – Mozambique; Bots – S/Africa; Bots - Zimbabwe) SADC Heads of State Declaration on Cooperation on Competition... COMESA East African Community Tripartite Customs Union (COMESA/SADC/EAC) WEAMU EPAs with EU 9

10. 10 SADC DECLARATION ON REGIONAL COOPERATION IN COMPETITION AND CONSUMER POLICIES WE, the Heads of State…Hereby declare that… [Effective Cooperation - Paragraph 1 (e), (f), (h] Cooperation shall be enhanced by establishing a transparent framework that contains appropriate safeguards to protect the confidential information of the parties and appropriate national judicial review; Member States shall have regard to comity' principles, including positive comity, as an instrument of regional and bilateral cooperation within the region, including informal positive comity referrals among competition enforcement authorities; Member States shall review those provisions in their laws that stand in the way of these cooperative efforts and explore areas where they are prepared to enter into binding agreements

11. 4. BOTWANA’S INFO SHARING EXPERIENCES 11  The Competition Authority in Botswana has been in existence since April 2011 but has learnt well from its more advanced neighbouring and other overseas competition authorities  While our Competition Act call for more formal cooperation, most of the cooperation has actually occurred informally, as the diagram below shows:

12. INFORMAL Request to Namibia on a catering cartel Request to South Africa on wheat, medical sector Request to Zambia: car-repair industry Voluntary disclosures FORMAL SADC Competition Committee setting up a regional Case database Formal Agreements yet to be signed but in effect have not substantially affected cooperation 12

13. 5. HYPOTHETICAL CASE APPLICATION  Under our Act, «Confidential Information» has not been defined so it would be a case-by-case determination  We currently have no leniency policy but would, in principle, use the SADC Guidance Note on Leniency Programs  Where there is a formal agreement (I believe BTAs, SADC would suffice) we would provide the relevant info about the leniency application by CropPro to S/Africa, Nambia, Tanzania, Zambia,etc  Reciprocity would play a major role 13

14. 6. CHALLENGES  Varied definitions of confidential information  Unreasonable administrative interpretation/ understanding of confidential information  Timeliness of information submission when requested  Submission of unhelpful, public domain information  Lack of passion for information sharing  Bureaucratic hurdles as may arise  «Negative reciprocity»  Difficult to cooperate where there has been no previous experience of cooperation/ familiarity 14

15. THANK YOU… FOR FURTHER INFORMATION: Thula Kaira - CEO Competition Authority Plot 50664, Fairgrounds Private Bag 00101 Gaborone, BOTSWANA Tel: +267 393 4278 Fax: +267 312 1013 EMAILS: Thula.Kaira@competitionauthority.co.bwThula.Kaira@competitionauthority.co.bw CA@competitionauthority.co.bw WEBSITE: www.competitionauthority.co.bwwww.competitionauthority.co.bw FACEBOOK: Competition Authority – Botswana TWITTER: CompetitionBots