Chapter One

Introduction

1.1. Background of the study

UDHR which is currently getting the standard of customary international law under Article 8
states that:

Everyone has the right to an effective remedy by the competent national

tribunals for acts violating the fundamental rights granted him by the
constitution or by law.

People who have suffered adverse human rights impacts as a result of business activity continue
to face multiple and serious barriers to remedy. 1 These include legal, financial and practical
barriers to accessing judicial and non-judicial mechanisms.2In recognition of this, the Office of
the UN High Commissioner for Human Rights (“OHCHR”), as part of its mandate to advance
the protection and promotion of human rights globally, is leading a process aimed at helping
States strengthen their implementation of the third pillar of the UN Guiding Principles on
Business and Human Rights relating to Access to Remedy.3

In November 2014, and pursuant to Human Rights Council resolution 26/22, OHCHR launched
the Accountability and Remedy Project.4 Through detailed research, evidence gathering and
1
United Nations Human Rights Office of The High Commissioner (UNHROHC), Access to remedy for business-
related human right abuses. <available at> http:www.ohchr.org/business accessed on August 16, 2019
2
Ibid,p,1
3
Ibid
4
Ibid

1
extensive, inclusive consultations on the legal and practical issues that impact upon the
effectiveness of judicial mechanisms in achieving corporate accountability and access to remedy
in cases of business-related human rights abuses, the Accountability and Remedy Project aimed
to identify measures to enhance the effectiveness of judicial mechanisms in such cases.5

The American Sherman Act 1890 is taken as the starting point of modern competition (or in
America, ‘antitrust’) law but the roots of competition law lie much deeper. 6 Concerning the issue
Senator Sherman himself told the Senate that his bill did ‘not announce a new principle of law,
but applies old and well-recognized principles of the common law to the complicated jurisdiction
of our State and Federal Government’.7 It has even been suggested, unconvincingly, that the Act
is based in part on the Constitution of Zeno, Emperor of the East from 474 to 491, promulgated
in 483. Roman legislation dealing with some aspects of competition predates the Constitution by
over 500 years.8

In US Prior to the enactment of the Sherman Antitrust Act ("Sherman Act") in 1890, a number of
states took the initiative to prosecute the trusts of the day for their restrictive practices. 9 This was
done mainly through the use of corporation law and common law restraint of trade principles. 10
The state of Kansas enacted the first antitrust law in 1889, and at least twelve other states did the
same.11 Fourteen states and territories adopted constitutional prohibitions of monopolies or other
anticompetitive business forms before the Sherman Act became law.12

Since Sherman act covers price fixing and market sharing agreements between independent firms
as well as monopolization practices by individual companies. 13The remedy in a Section 2 case
should seek to unfetter a market from anticompetitive conduct, to terminate the illegal monopoly,
deny to the defendant the fruits of its statutory violation, and ensure that there remain no
practices likely to result in monopolization in the future.14
5
Ibid
6
Mark Furse, Introduction to competition law, competition law of EU and UK (Oxford University press, 2011)p,3
7
Ibid
8
ibid
9
Barry E. Hawk and , ‘andLaraine L. Laud, antitrust federalism in the US and decentralization of competition law
enforcement in Europe: A comparison’(1996) 20 FILJ 19
10
Ibid
11
Ibid
12
Ibid
13
Massimo Motta, competition policy : theory and practice (January 31. 2003) p,5
14
Jeremy West, remedies and sanctions in abuse of dominance case(2006) OECD working paper available
athttps://www.oecd.org.competition accessed on April 26, 2019

2
Since Sherman Act doesn’t include merger regulation the congress enacted Clayton act in 1914
to regulate merger.15 Under section 7 of Clayton Act there different types of remedies in case of
merger regulation rules.

The Clayton act has been subsequently amended. The Robinson-Pat man Act of 1936 amended
its provisions on price discrimination. 16 Later the Cellar Kefauver Act of 1950 amended instead
the Clayton Act provisions relating to mergers, by extending cross-ownership prohibition among
competitors to asset the transaction.17 Another important legislation amendment is the Hart-Scott
Rodino Act of 1976 that amends the merger provisions of the Clayton Act by giving the DOJ and
the FTC the power to review all mergers of firms above a certain size threshold.18

In US to establish institution that adjudicate anticompetitive conduct, Federal Trade commission

act enacted in 1914.19 This law created Federal Trade commission (FTC) an independent agency
that should regulate unfair trade practice and that shares with Department of Justice (DOJ), a
government agency that has responsibility to enforce antitrust law in the US at the federal level.20

Subject to certain standing requirements, private plaintiffs may bring civil actions for remedies in
case of violations of the federal antitrust laws. To ensure that private parties have an adequate
economic incentive to undertake costly antitrust litigation, federal competition law in the United
States authorizes the award of treble damages, plus attorneys’ fees, to prevailing plaintiffs.21

In case of Ethiopia FDRE constitution under Art.37 (1) recognize as everyone has the right to
bring a justiciable matter to, and to obtain a decision or judgment by, a court of law or any other
competent body with judicial power. Sub-article 2 of the same provision indicate that this claim
can be brought by any association representing the Collective or individual interest of its
members; orany group or person who is a member of, or represents a group with similar
interests.

15
Massimo Motta, Supra(note 13) p,5
16
Ibid,p,6
17
Ibid
18
Ibid
19
Ibid
20
Ibid
21
Ibid

3
The evolution of competition policy and competition law in Ethiopia can be traced back to the
1960s, with the introduction of the Commercial Code and Civil Code of 1960, which prohibited
unfair trade practices which affected trade within Ethiopia.

The Criminal Code of 2004, and Trademark Registration and Protection Proclamation of 2006
also had the objective of prohibiting unfair practices that affected trade within Ethiopia.

Ethiopia enacted Trade Practice and Consumer Protection Proclamation no. 329/2003 as it’s ever
competition law to promote trade competition. This proclamation regulates different
anticompetitive conducts and remedies for victims of anticompetitive conducts.

Trade Practice and Consumer Protection Proclamation no. 329/2003was amended by The Trade
Practice and Consumers’ Protection Proclamation No. 685/2010. This proclamation regulates
remedies for victims of anticompetitive conduct. This proclamation in addition to regulating
remedies for victims of anticompetitive conduct, it also includes remedies for consumers that
have been victimized by act of anticompetitive conducts. In addition to this it also establish
institution which have judicial power on competition case. 22Under this law remedies for
consumers in case of violation of the competition law is also included.23

Later on Trade Practice and Consumers’ Protection Proclamation No. 685/2010 is repealed by
The Trade Competition and Consumer Protection Proclamation (here after known as ‘TCCP’)no.
813/2013, which is the current competition legislation in Ethiopia, came into force on 21 March
2014.

Though there are these historical rules governing available appropriate remedies for the victims
of anticompetitive conduct at national and foreign jurisdiction competition law, there are a
number of problems associated with remedies for victims of anticompetitive conduct under
Ethiopia competition law. Hence, the study tries to show those problems related with remedies
for victims of anticompetitive conducts in Ethiopia through analyzing the existing laws,
including opinion of authorities, competitors and consumers in relation to redress of
anticompetitive conduct and making comparison with other jurisdictions and lastly recommend
gap-closing solutions.

22
Trade practice and consumer protection proclamation no. 685/2010 Art.28
23
Ibid, Art.35

4
1.2. Statements of the Problem

Effective system of private law remedies including court actions brought by private parties are
important. They complement and reinforce public enforcement (remedies) and enable those who
suffer harm from breaches of competition law to obtain redress be it compensation or other form
of relief. In addition, even where they would have adequate powers, public authorities often have
limited resources or do not necessarily see it as their priority to engage into ordering
compensation for individual consumers. Art. 42 and 43 of proc. No.813/2014 states about types
of administrative and criminal remedies of anticompetitive conducts respectively. However
Ethiopian competition and consumer protection law proclamation No. 813/2014 is silent with
regards to claims of private remedies up on harm inflicted by anticompetitive conduct like abuse
of dominancy, merger and anticompetitive restrictive agreements. Thus individuals inflict harms
because of acts of such anticompetitive conduct in Ethiopia can be left uncompensated. Using
extra contractual law as an option have its own limitations. One of the principal limitations of the
law of extra contractual liability is that it does not allow recovery for pure economic losses 24.
Another limitation of this law is the difficulty to prove acts of the tort-feasor. 25 Acquiring proof
of negligent design or of negligent manufacturing process may require examination of the
defendant’s manufacturing facilities and processes.26 The defendant may not allow access to
necessary information and otherwise acquiring it, if possible at all, can be costly.27Thus the
researcher has also share such fear with regards to private claim of compensation under extra
contractual law up on violation of competition and consumer protection law. Moreover Ethiopian
competition law, is not obliged competition authority to transmit evidence on its hand to private
individuals to use it in civil litigation as some jurisdictions do.

Currently in Ethiopia it is observed that ruling parties EPRDF own companies like EFFORT,
Dinsho (Tumsa), Tiret and Wondo Trading. 28 If one among these companies violate competition
law and commit anticompetitive conduct such as abuse of dominancy, Merger, unfair
competition and restrictive anticompetitive agreements and be a party in front of Trade
24
DessalegnAdera, The Legal and Institutional Framework for ConsumerProtection in Ethiopia (Masteral thesis,
Addis Abeba University 2011)p,22
25
Ibid
26
Ibid
27
Ibid
28
BefekaduHailu, ‘inside the controversial EFFORT’ Addis Standard (Addis Abeba, January 16/2017)
www.addisstandard.com/analysis-inside-controversial-effort accessed on April 28, 2019

5
competition Authority, impartiality of the authority to entertain the case could be fall into
question since the authority is accountable to the ministry of Trade which is executive organ of
government. Such impartiality of an authority could be a factor which limit rendering of
effective remedies for victims of anticompetitive conducts in Ethiopia.

Currently in Ethiopia though competition and consumer protection law proclamation no.
813/2014 under Art.34 recognizes the establishment of Trade competition authority at regional
levels, there is no Trade competition authority established at regional level. consumers and
competitors whom harmed by anticompetitive conduct at regional level have to go to Federal
adjudicative bench of the authority to brought action for compensation though majority of
consumers are regional resident. This inaccessibility of Authority at regional level may expose
consumer to manipulation for they are illiterate and are not aware of their rights. In addition to
this it can expose consumers and competitors from regional state to incur substantial cost of
bringing an action at Federal level and even it can discourage them from bringing an action for
compensation. Moreover this in accessibility of the authority can be in contradiction with Art. 37
of FDRE constitution which recognizes the right of a person to access to justice.

It is clear that consumer and small and medium enterprises bargaining power to claim
compensation from the harm inflicted by anticompetitive conduct of big companies are very low.
In addition to this coast of litigation may exceed compensation sought by victims of
anticompetitive conducts. The current Ethiopian competition law proclamation no.813/2014
doesn’t recognize collective redress or representation of civil society to the consumer to bring
action for compensation.Art. 38 of civil procedure recognizes a class action. A class action
constitutes a specific form of collective redress where actions are brought on behalf of a defined
class, but without all members of the class being identified to the Court. 29 This provision is not
seems to cover collective remedies in which actions are brought on behalf of not only defined
class but also un identified class of consumers. For instances if an act of a given cartel may has
an effect on the whole consumers of the country, it is not possible to claim compensation under
Art. 38 of civil procedure code as the claimant is not identified. Based on the above problems of
study, researcher has developed the following research objectives to be answered by this thesis.

1.3. Objective of the study

29
European Parliament, ‘collective redress in antitrust’ <available at >http://www.europarl.europa.eu > accessed
on May 11, 2019.

6
1.3.1. General objective

The general objective of the study is to examine the availability and appropriateness of remedies
for victims of anticompetitive conducts under Ethiopian competition and consumer protection
laws.

1.3.2. Specific objectives

 To examine availability of remedies for victims of anticompetitive conducts under
Ethiopian competition and consumer law.
 To examine Model/ types of remedies included under Ethiopian competition and
consumer protection law.
 To examine factors affecting the right to remedies of victims of anti-competitive conduct.
 To examine standards for assessment of compensation of loss arising from anti-
competitive conduct.
 To examine institutional framework that adjudicate anticompetitive conducts both at
Federal and Regional level.
1.4. Research questions
1. What kind of remedies for anticompetitive conducts are available under Ethiopian
competition and consumer protection law?
2. What kind of models/types of remedies for anticompetitive conduct included under
Ethiopia competition and consumer protection law?
3. What factors can affect remedies of anti-competitive conduct?
4. What kind of standards employed for assessment of compensation of loss arising from
anti-competitive conduct?
5. What kind of institutional framework exist to adjudicate anticompetitive conducts both at
Federal and regional level?
1.5. Scope of the study

The whole study is concerned with the availability of remedies for victims of anti-competitive
conducts under Ethiopian competition and consumer protection law. In doing this the study deals
with remedies for restrictive agreements, merger, abuse of dominance and unfair competition in
Ethiopia and special emphasis is given to Sheshamane town. Claims of damages of the loss arise out

7
of non-competition wrongs covered under TCCP proclamation no.813/2104, which could brought by
consumers are out of the scope of this paper .

For reasons of comparison, experience of nations like US, South Korea, Brazil and South
Africa’s competition law with regards to remedies for victims of anti-competitive conduct are
also included.

1.6. Significance of the study

The research has the paramount importance to understand problems related to remedies of
victims of anti-competitive conduct under Ethiopian competition and consumer protection law.
The research may have contribution for dispute solving institutions in relation to rendering
appropriate remedies and in assessing compensation to victims of anticompetitive conducts. It
also create an awareness for victims of anticompetitive conducts about availability and
enforcement procedures of remedies of anticompetitive conducts under Ethiopian competition
and consumer protection laws. The research can also help students and instructors in teaching
and learning process. It can be also used as an input for further research on the topic.
1.7. Limitations of the study

The major problem that the researcher will face is in accessibility of Universities library as the
researcher is following the study out of the campus as a weekend learner. Thus there is shortage
of reference materials. In addition to this the writings in relation to this issue are general in
nature. Remedies for violations of competition and consumer law is given a section or sub
section in a book. Moreover the writer is not accessed to any local or foreign research literature
written on the topic of study. So that mostly the writer will be dependent on web sources.

1.8. Research methodology

In the study the researcher employ mainly qualitative (mostly socio-legal) research methods. The
study is qualitative because it devote on the reason, justification or logical argument on legal
provision of domestic Laws and that of other nations, literature review and case analysis.

8
Data is collected from primary as well as secondary sources. It is collected from primary sources
in that they are gathered from Ethiopian and other nation's competition laws and the opinion of
regulators and judges of TCCPA through semi-structured interviews. In addition to this the
opinion of competitors and consumers from Sheshamane, Dodola and Nagelle Arsi is also
included. In conducting interviews the researcher follows purposive sampling methods of data
collection. Accordingly the researcher made interviews for 20 competitors and 20 consumers
living in Sheshamane town, 10 competitors and 10 consumers living in Nagelle Arsi and 10
competitors and 10 consumers living in Dodola town. It is collected from secondary sources, in
that it is by referring from foreign and domestic literatures and websites related with the study.

With regards to data analysis methods, researcher employed legal analysis, interpretation, and
description of laws and the reviews of previously conducted researches and scholarly writings
have been conducted.

In addition, for the sake of clarity and in order to test adequacy of our law to govern remedies for
victims of anticompetitive conduct comparative approach will be employed to compare
Ethiopian competition and consumer protection law provisions dealing with remedies for victims
of anticompetitive conducts with experience of other countries. Special emphasis being given to
the experiences of US from developed nations because of US have Federal government structure
like Ethiopia and the lesson can be derived from their experience of enforcing remedies of
anticompetitive conducts under competition law at Federal and State levels. Moreover the study
also tries to compare the experience of Brazil, South Korea and South Africa from developing
countries too.

1.9. Organizations of the study

The paper is organized in four chapters. Accordingly, the first chapter deals with introduction
including background, the problems that need to be addressed, the objectives of the study,
research questions, scope of the study and methodology employed in the study.

Chapter two deals with conceptual foundations of remedies for victims of anticompetitive
conducts. This deals with meaning of remedy, its purpose and types, appropriate remedies for
victims of anticompetitive conducts in general, factors barrier to obtaining remedies of
anticompetitive conduct and theories of anticompetitive remedies.

9
Chapter three deals with remedies for victims of anticompetitive conduct under other countries
competition laws. This deals with legal framework governing anticompetitive conduct and
remedies for its victims under US, Brazil, South Korea and Republic of South Africa’s
competition laws. It also deals with institutional framework that adjudicate competition case in
those countries.

The fourth chapter deals with remedies for victims of anticompetitive conducts under Ethiopian
competition and consumer protection law. Thus the chapter discusses about legal framework
governing remedies for victims of anticompetitive conducts. It also deals with institutional
framework that adjudicate competition case in Ethiopia. Lastly it deals with addressing
conclusion and recommendation on the basis of research findings.

Chapter Two

2. Conceptual foundations of remedies for victims of anticompetitive conduct.

2.1. Meaning of Remedies

An attempt to provide a more precise legal definition of the term remedy has faced important
conceptual difficulties.30 This is because concept of remedies has multiple meanings, some of
which overlap: remedies may be corrective or preventive (the broad functional definition of the
remedy) or they may be considered as an action or a cause of action, a substantive right, a court
order, a final outcome.31

Black law dictionary defines remedies as the field of law dealing with the means of enforcing
rights and redressing wrongs.32Art.7 (1) of European Councils Regulation no.1/2003 include the
term remedy though it is not direct definition. It is stated that:

Where the Commission, acting on a complaint or on its own initiative, finds that there is
an infringement of Article 81 or of Article 82 of the Treaty, it may by decision require the
undertakings and associations of undertakings concerned to bring such infringement to an
end. For this purpose, it may impose on them any behavioural or structural remedies

30
IoannisLianos, competition law remedies in Europe (2013) < available at> https://www.coleurope.eu/event
accessed on August 16, 2019,p,372
31
Ibid
32
Brayan Garner, Black’s Law dictionary (8thed. West a Thomson business St. Paul MN 2004)

10
 which are proportionate to the infringement committed and necessary to bring the
infringement effectively to an end. Structural remedies can only be imposed either where
there is no equally effective behavioural remedy or where any equally effective
behavioural remedy would be more burdensome for the undertaking concerned than the
structural remedy. If the Commission has a legitimate interest in doing so, it may also
find that an infringement has been committed in the past.

In the context of this provision it seems that remedy is the measure taken by the EU commission
to bring the infringement effectively to an end. The Court of Justice of the EU (CJEU) tries to
interpret this provision in the case of Ufex. In this case the court held that, the court cannot reject
the cases on the mere basis that allegedly an infringement ceased or ended but also infringements
effects on the market be brought an end.33

EU commission included under the category of remedies, injunctions and fines, as well as ‘civil
law’ remedies (such as damages and injunctions imposed by the judiciary).34 No effective criteria
is set by the EU to define the term remedy.35

2.2. Historical development of remedies for victims of anticompetitive conducts

At international level the development of rules which regulate remedies for victims of
anticompetitive conducts seems a recent phenomenon. United Nations Declarations of Human
Right (UDHR) which currently claimed getting the status of customary international law declares
persons right to gate effective remedy up on violation of fundamental rights under Article 8.
Article 8 of UDHR stipulates:

Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.

Acts of anticompetitive conducts violate or affects economic rights of a person. Economic rights
are fundamental rights recognized under international human right bills like International
covenant on Economic, Social and Cultural Rights (ICESCR).36

33
Per Hellstrom and etal, remedies in European antitrust law (2009) 76 ALJ 46
34
IoannisLianos, supra note 30, p,373
35
Ibid
36
See Article 1 of International covenant on Economic, Social and Cultural Rights.

11
By acknowledging the adverse impact of business on person’s fundamental Human right, in 2005
UN appoints a Special Representative for Business and Human Rights by its Secretary
General.37His mandate resulted in the ‘Protect, Respect and Remedy Framework’ that outlined
the duties and responsibilities for states and businesses to address business-related human rights
abuses.38 This was followed by the Guiding Principles on Business and Human Rights (UNGPs)
in 2011.39 Both the Framework and the UNGPs were unanimously endorsed by the UN Human
Rights Council.40

The UNGPs though they have garnered international consensus and support because they include
real and plausible strategies for reform, they lacked binding force, legal compulsion and the
supervisory framework needed to implement real legal change.41

In June 2014, resolution was adopted by the Human Rights Council that established an Inter-
Governmental Working Group to develop an ‘international legally binding instrument on
transnational corporations and other business enterprises with respect to human rights’. 42 Such a
‘binding instrument’, or treaty, has the potential to take an important next step on the path
towards remedy for victims of business-related human rights abuses.43

In its final report on the Project submitted to the Human right Council in June 2016, OHCHR set
out a series of suggestions as to the actions that could be taken by States, unilaterally and
cooperatively, to improve their implementation of the third pillar of the UN Guiding Principles
with regard to judicial mechanisms.44

2.3. Purpose of remedies for violations of competition law

Competition law remedies are adopted with the aim to maintain/restore competition in the
market.45 This includes the “micro” goals of putting the infringement to an end, compensating
37
Daniel Blackburn, International Center for Trade Union Rights papers, Removing Barriers to justice (2017)
(Amsterdam, StichtingOnderzoek Multinational Ondernemingen ) available at https://www.business-
humanrights.org accessed on August 16, 2019
38
Ibid,p, 7
39
Ibid
40
Ibid
41
Ibid
42
Ibid, p,8
43
Ibid
44
UNHCOHR, Supra note, 1, p,2
45
United Nations conference on Trade and Development, Appropriate sanctions and remedies (Geneva 8-12
November 2010) <available at >https://www.unctad.org accessed on May 12, 2019

12
the victims, and curing the particular problem to competition; but also the “macro goal” of
putting incentives in place so as to minimize the recurrence of just such anti-competitive
conduct.46

Some also argues that deterrence is a major goal of antitrust remedies and has been a major focus
of much of the recent debate over antitrust remedies.47

2.4. Types of anti-competitive conduct remedies

2.4.1. Structural Remedies

Structural remedies are generally one-off remedies that intend to restore the competitive structure
of the market.48 Structural remedies generally will involve the sale of physical assets by the
merging firms or requiring that the merged firm create new competitors through the sale or
licensing of intellectual property rights.49

They require firms to divest assets they hold.50 The structural remedies restructure the concerned
entity into two or more companies, or require it to sell some of its assets to another firm.51

An advantages of structural remedies is the fact that they have a lasting impact, directly
addressing the source of competitive harm at its root, and eliminating the circumstances that
originated it (for instance, market power) while creating new competitors or invigorating existing
ones.52In this way therefore they change firms’ incentives by modifying the market structure,
using the market mechanism itself as a remedy.53

The other advantages of Structural remedies are, they generally perceived to be cost-effective in
terms of implementation.54 They entail few oversight costs, due to their one-off nature; their

46
Ibid
47
First, Harry, "The Case for Antitrust Civil Penalties" (2008). New York University Law and Economics Working
Papers. 19. <available at>https://lsr.nellco.org/nyu_lewp/148 accessed on May 12, 2019
48
United Nations Conference supra (n 37)10
49
US Department of Justice Antitrust Division, Antitrust division policy guide to merger remedies (2011) <available
at> https://wwwjustice.gov accessed on May 12, 2019
50
United Nation conference supra (n 45)10
51
Ibid
52
OECD (2019), the divestiture of assets as the competition remedy: stocktaking of the international experiences
<available at> www.oecd.org/daf/competition/devistiture-of-assets-as-a-competition--remedy.ht. accessed on
May 28, 2019
53
Ibid, p, 26
54
Ibid, 27

13
enforcement is certain and readily verifiable, without much scope for circumvention or need for
judicial intervention.55

Structural remedies have also been known for allowing firms to make their own business
decisions and adapt to changing market conditions, which they are arguably better equipped to
do than public authorities.56

Structural remedies are also known by their disadvantages like; their inherently invasive nature
may create inefficiencies (in particular when they are not properly tailored to the harm); for
instance, splitting up a business may result in duplication of investment and loss of economies of
scale or scope.

The other disadvantages of structural remedies are, they are not always easy to administer, for
example, in tightly-knit companies difficult decisions may need to be taken with regard to capital
and employee allocation when they are split, they might be unfeasible given certain conditions,
for instance if separation does not allow for the creation of a viable independent business, if the
divested business fails, or if suitable purchasers are inexistent or insufficient, the incorrect
pricing of assets, significant harm caused to customers, the difficulties (or impossibility) to
reverse the remedies once implemented, and excessively high implementation costs and
Structural separation can also give rise to an increase in transaction costs for consumers.57

With regards to their classifications, Structural remedies can be classified or organized in

different manners; for example, in the past, the OECD has divided structural remedies used by
public authorities for promoting competition in regulated industries into three categories –
ownership separation, club ownership and operational separation.58

2.4.2. Behavioral remedies

In some jurisdictions behavioral remedies are known as conduct remedies 59. Behavioral
remedies are normally ongoing remedies that are designed to modify or constrain the behavior of
firms.60

55
Ibid
56
Ibid
57
Ibid
58
Ibid, p, 28
59
United Nations Conference supra (n 45)10
60
Ibid

14
Behavioral remedies obligate a company either to do something or to stop doing something. 61
This type of remedy requires that the competition law violator stop engaging in the conduct that
was found to be unlawful.62

Behavioral remedies have several advantages.63These are they can be tailored to the case-specific
firms and market circumstances; for this reason, they can be very helpful in dealing with
competition issues that do not occur homogeneously across the whole market, allowing
competition authorities to target their intervention, they are less invasive and easily reversible
than structural remedies; they can, therefore, operate only in specified timeframes, they are able
to respond to changing market realities (such as new markets, network industries or technology
markets), and can be modified during the course of the implementation if necessary.64

Behavioral remedies are criticized for their failing to attack the source of competitive harm
directly at its roots, dealing only with its effects without correcting the market structure that
resulted in precisely these effects, they can be challenging to design, to enforce and to monitor,
their execution often requires intervention from competent authorities, who may be forced to
undertake market regulation functions they may not be responsible or prepared for, They may
also entail a risk for market distortion, particularly when they involve a direct intervention in the
market concerned over a prolonged period of time and at the same time there is the risk of
introducing an element of legal uncertainty, since it is difficult to gauge their exact duration from
the outset.65

Behavioral remedies are classified as negative and positive remedies. 66 That is behavioral
remedies can consist of an affirmative obligation to perform certain actions (positive or
affirmative behavioral remedies), or of a prohibition of behaving in a certain manner (negative
behavioral remedies.67Negative behavioral remedies, provide a direct means to bring the anti-
competitive behavior to an end, by requiring the firm concerned to stop the anticompetitive
conduct that the authority considers unlawful.68

61
Ibid
62
Ibid
63
OECD (2019), Supra (n 52)22
64
Ibid
65
Ibid,p,23
66
Ibid, 24
67
Ibid
68
Ibid

15
Positive or affirmative behavioral remedies, on the other hand, also have different objectives,
including restoring competition in the market, than prohibition alone.69 some of behavioral
remedies includes: supply or licensing obligations, obligations to sell on a non-discriminatory
basis, to license intellectual property, to provide access to information, to grant fair and non-
discriminatory access to a firm’s outlets, assets and infrastructures, to inform other parties of the
cessation of the infringement or of any other matter, to periodically provide the competition
authority with information, to establish an information firewall, or to set price terms in a certain
way.70

Behavioral remedies are criticized for they have forcing firms to undertake certain conduct
involves design and monitoring challenges; it furthermore entails the risk of introducing
inefficiencies into the market concerned and of reducing firms’ incentives to innovate (as can
particularly be the case when firms are obliged to grant access to intellectual property).71

2.5. Theories of assessment of Anticompetitive conduct remedies

While economic theory provides fairly straightforward guidance on the measurement of harm to
society or consumers in cartel cases, the theory of harm for mergers and exclusionary conduct is
much more complex.72 This is due to anti-competitive merger and exclusionary conduct
sometimes create efficiency gains, too.73Weighing the overall effects on society of conduct with
mixed effects is especially tricky.74

The paper will tries to address the major theories of assessment of compensation for the loss
arise by anticompetitive conducts.

2.5.1. Optimal Deterrence theory

The theory of optimal deterrence in antitrust law enforcement has become nearly universally
accepted in the legal-economic literature since a classic article by Landes (1983). 75 Quick to be
69
Ibid,p25
70
Ibid
71
Ibid
72
Organization of Economic cooperation and development, Quantification of harm to competition by National
courts and competition agencies (February, 2011) <available at>https://www.oecd.org/daf/quantificationofharm
accessed On May 12, 2019
73
Ibid
74
Ibid
75
John M.Connor, Optimal deterrence and Private International Cartel (May 2005 Pardu University) <available
at>https://www.researchgate.net accessed on May 12, 2019

16
accepted among North American scholars as the most appropriate framework for analyzing cartel
enforcement, in more recent years optimal deterrence theory has become unexceptional among
Western European scholars as well.76 This theory is work best in Cartel enforcement in which the
need for deterrence is clearest, because the harm is obvious and well-accepted, and the cases
generally do not raise (or the defendants are not permitted to raise) efficiency claims which
might lead to a calculation of the social benefits to weigh against the social harm.77

Optimal deterrence theory views remedies as mainly a deterrent device directed against potential
offenders with the view to ensure that the offender (specific deterrence), but also any other
potential offender (general deterrence), would be given sufficient disincentive to be discouraged
to engage in this harmful activity in the future.78

The design of optimal remedies requires a clear identification of the competition law problem
that the antitrust remedy is attempting to address.79The penalty that should imposed according to
optimal deterrence theory be equal to the net harm to everyone but the offender. For cartels, the
optimal penalty is equal to the deadweight welfare loss plus the wealth transfer to the cartel from
purchasers.80

The idea behind optimal deterrence theory is that the penalty must be sufficient to render the
expected value of the violation equal to zero. By imposing this cost, the offence will be
deterred.81

2.5.2. Corrective Justice Theory

Corrective justice describes a moral obligation of repairing the harm caused to another person.
Its main function is to preserve entitlements against wrongful infringement.82

Corrective justice has disqualifies any reasoning inconsistent with the bipolar relational structure
of private law: instrumental considerations, such as distributive justice and efficiency are

76
Ibid
77
First Harry, supra note 47, p,19
78
Lianos supra (n 30)394
79
Nicholas Economides and Ioannis Lianos, A critical appraisal of remedies in the EU Microsoft case (2010) CBLR
355
80
Lianos supra (n 30)p,394
81
Ibid
82
Ibid,p,389-390

17
excluded from consideration, according to this view, as ‘for although these may refer to both of
the parties, they relate the two parties not to each other but to the goal that both parties serve’.83

Distributive justice describes a morally required distribution of shares of resources among

members of a given group, either because of their membership to that group or in accordance
with some measure of entitlement which applies to them in virtue of their membership. 84The
distinction between distributive justice and corrective justice is that Rights and duties in
distributive justice are ‘agent-general’, while in corrective justice, ‘they are agent-specific’.85

Thus in case of corrective justice, the structure of the remedy should reflect the structure of the
injustice, retracing and reversing the movement between the parties.86

2.6. Determining Appropriate Remedies of anticompetitive conducts

The appropriateness of a particular remedy differs from a cost-benefit analysis which focuses
only on the gravity of harm and the alternative remedies that might be imposed. 87 The
appropriateness and suitability character of remedies requires remedial measurement, not only
with regard to the magnitude and scope of the harm to consumers, competition or the nature of
the infringement, but also in relation to the type of violation that was identified. 88 This would
cover not only a particular competition law prohibited practice, but also the theory of harm
advanced in the specific case.89 Remedies need to be effective in pursuit of their objectives. 90 The
principle of appropriateness requires a fit between the harm and the remedy.91

The design of optimal remedies requires a clear identification of the competition law problem
that the antitrust remedy is attempting to address.92 A number of general suggestions can help
agencies to design and implement effective remedies. 93 First, it is helpful to spend time early in

83
Ibid
84
Ibid
85
Ibid
86
Ibid
87
Tembinkosi Bonakele and Liberty Mncube, Designing Appropriate Remedies for Competition Law Enforcement:
The Pioneer Foods Settlement Agreement <available at> https://www.compcom.co.za accessed on May 19, 2019
88
Ibid
89
Ibid
90
Ibid
91
Ibid
92
United Nations Conference, supra (n 45)10
93
Ibid

18
the investigative process defining the remedial objectives and developing a plan for attaining
them,94

According to OECD recommendation a relevant authority should have to identify a number of

factors while deciding on the application of structural or behavioral remedies 95. These factors
include “the effects on competition, effects on the quality and cost of regulation, the transition
costs of structural modifications and the economic and public benefits and costs of vertical
integration”.96

2.6.1. Appropriate remedies for Merger

In assessing remedies in merger cases, competition authorities seek to restore or maintain

competition while permitting the realization of relevant merger efficiency and other benefits.97

Merger remedies are generally classified as either structural, if they require the divestiture of an
asset, or behavioral, if they impose an obligation on the merged entity to engage in, or refrain
from, a certain conduct.98

Horizontal and vertical mergers generally involve different competitive concerns.99 These
differences must be taken into account when crafting an appropriate remedy.100 Frequently,
competitive concerns in horizontal mergers can be best resolved by a structural remedy, while
vertical mergers lend themselves to behavioral remedies or a combination of both. While such
generalizations may be a useful starting point, each transaction should be evaluated based on its
own merits.101 In crafting remedies, competition agencies often seek the views of third parties in
order to ensure that an optimal remedy is found.102

Whether the remedies chosen are structural, behavioral or a combination of the two, the authority
must provide a certain level of oversight to ensure that the remedies are implemented

94
Ibid
95
OECD (2019), supra (n 52)35
96
Ibid,p,35
97
Ibid, p,11
98
Organizations of Economic Cooperation and Development, remedies in Merger case (2011) available at
https://www.oecd.org accessed on May 12, 2019
99
Ibid,p,12
100
United Nations Conference supra (n 45) 11
101
Ibid
102
Ibid

19
effectively.103 To alleviate some of the authority's burden, third parties are often called upon to
assist in the implementation process.104 When remedies are structural and a divestiture of assets is
required, the authority may appoint an experienced, knowledgeable and impartial trustee, such as
an investment bank or consulting firm.105

2.6.2. Appropriate remedies for Abuse of Dominance

Identifying appropriate and effective remedies and sanctions in abuse of dominance cases has
generally proven to be difficult.106One fundamental difficulty is that there is a diversity of
opinion regarding the objectives that should be pursued when designing remedies and
sanctions.107 Deterring future anticompetitive conduct are among the possible choices. 108
Different jurisdictions tend to prioritize different objectives, but even within individual countries
clear choices have not always been made.109Furthermore, it is often hard to design remedies and
sanctions that will achieve one or more of those objectives. 110 For example, it can be difficult to
ascertain the level of fines that will achieve deterrence without crippling the defendant or chilling
other, legitimate conduct.111 Alternatively, even when conceptually sound behavioral remedies
are identified, it may still be impractical or impossible to monitor a defendant’s compliance with
them.112 Moreover, relatively speaking, there has not been a great deal of experience in this
area.113 There are not nearly as many abuse of dominance cases as there are merger and cartel
cases.114 Making matters even more difficult for agencies and courts is the fact that there is not
much agreement among scholars about the effectiveness of the remedies that have been
implemented.115

103
Ibid,p,13
104
Ibid
105
Ibid
106
Organizations of Economic Cooperation and Development (2006), Remedies and Sanction in Abuse of
Dominance cases <available at> https://www.oecd.org/abuse accessed on May 15, 2019
107
Ibid
108
Ibid
109
Ibid
110
Ibid
111
Ibid
112
Ibid
113
Ibid
114
Ibid
115
Ibid

20
Most jurisdictions’ competition laws authorize imposition of both behavioral and structural
remedies, but some allow structural remedies only when there is no equally effective behavioral
remedy or when any such remedy would be more burdensome to comply with than the structural
remedy116. In many cases behavioral remedies will be sufficient to effectively end the
competition infringement. In some cases, however, the only effective or less burdensome remedy
is a structural one.117

2.6.3. Appropriate remedies for anti-competitive agreements

As opposed to remedies in merger cases, behavioral remedies tend to be preferred over structural
remedies to address the effects of anticompetitive agreements. 118 Firstly, cease and desist orders
might be used to bring the anticompetitive conduct to an end. For instance, the cartelists might be
ordered to stop price-fixing agreements.119

2.7. Factors affecting the right to remedies of victims of anticompetitive conducts

There are many challenges facing those whom seeking to obtain remedies through judicial
mechanism.120 Though those challenges vary from jurisdiction to jurisdiction, there are persistent
problems common to many jurisdictions.121 These include fragmented, poorly designed or
incomplete legal regimes; lack of legal development; lack of awareness of the scope and
operation of regimes; structural complexities within business enterprises; problems in gaining
access to sufficient funding for private law claims; and a lack of enforcement. 122 Those problems
have all contributed to a system of domestic law remedies that is “patchy, unpredictable, often
ineffective and fragile”.123

The research will going to discuss some of the above stated barriers to obtain effective remedies
by victims of anticompetitive conducts as follows;

2.7.1. Legal factors

116
Ibid,p,9
117
Ibid
118
United Nations Conference supra (n 45) p,11
119
Ibid
120
Human right council, reports of the United Nations High commissioner for Human rights and reports of the office
of the High commissioner and the Secretory general (32 nd session 10 May, 2016) <available
at>https://www.ohchr.org/business accessed on June 22, 2019 paragraph 4
121
Ibid
122
Ibid
123
Ibid

21
The factors related with law that could a barrier to obtain remedies for anticompetitive conducts
the competition laws of some states does not clearly provide what remedies may be awarded for
violations of the law. For instance, Zambian competition act does not clearly provides what
remedies could be awarded for violations of the act. 124 Consequently, the Zambian competition
authority is awarding remedies in the form of cease and desist orders, orders for refunds or
replacements in the case of sale of defective products or imposing conditions to certain
authorized mergers by relying on or having drawn an inference from the Section of the Zambian
Competition Act that stipulates that the Commission may give orders or directives and may make
requirements as remedies where no penalty is provided by law for a specific violation.125

2.7.2. Structural and managerial complexity of business enterprises

Under the doctrine of “separate corporate personality” of company law, each company, as a
separately incorporated legal entity, is treated as having a separate existence from its owners and
managers.126Consequently, a company (a parent company) that owns shares in another company
(a subsidiary) will not generally be held legally responsible for acts, omissions or liabilities of
that subsidiary merely on the basis of the shareholding.127

In many jurisdictions, the law relating to parent company liability in cases of business-related
human rights abuses is in the early stages of development, creating an uncertain basis for legal
action against parent companies.128

The legal uncertainty in many jurisdictions surrounding the extent to which parent companies on
its part have legal responsibilities under domestic law regimes to identify, prevent and mitigate
human rights abuses connected with that business enterprise’s operations is not only a barrier to
remedy itself, but also gives rise to further barriers, including by adding to legal costs and
creating delays.129

2.7.3. Market Condition

124
United Nations Conference supra (n 45) p,12
125
Ibid
126
Human right council, Supra (n 120) paragraph 21
127
Ibid
128
Ibid, paragraph 22
129
Ibid, p,10

22
In relation to factors connected with market conditions, under which the remedy needs to
produce the desired effects, it first needs to be mentioned that market size and number of players
on the relevant market are somewhat limited in a number of developing countries. 130 Thus, it
might be difficult to find an appropriate acquirer in the case of structural remedies consisting of
divestment (divestiture).131

2.7.4. Challenges related with cross-border case

Cross-border cases pose particular challenges that can undermine efforts to ensure accountability
and access to remedy.132The prevailing lack of clarity across jurisdictions about the roles and
responsibilities of different interested States in cross-border cases create a significant risk that no
action will be taken, leaving victims with no prospect of remedy.133

State agencies can also experience a range of practical challenges that can undermine effective
cooperation, including a lack of information about how to make a request to agencies in other
States, a lack of opportunities for cross-border consultation and coordination, differences of
approach regarding issues of privacy and the protection of sensitive information, a lack of
resources needed to process requests in a timely manner and a lack of awareness of investigative
standards in other States.134

Chapter Three

3. Remedies for anticompetitive conducts under the laws of other countries

3.1. Remedies for anticompetitive conducts under the US antitrust law

Under US antitrust law congress provided for both private and public enforcement of the
antitrust law135. Anticompetitive conduct can be challenged either by the Antitrust division of
Department of Justice, the Federal Trade Commission, States ‘attorney general and private
parties who have been injured by the antitrust violation and standing to sue.136
130
United Nations Conference supra (n 45) p,12
131
Ibid
132
Human right council supra(120) paragraph 24
133
Ibid
134
Ibid, paragraph 25
135
Antitrust modernization commission, report and recommendations (chapter III) <available
at>https://govinfo.library.unt.edu accessed on May 27, 2019
136
Ibid

23
US antitrust law provides different remedies for different anticompetitive conducts. Some of
these remedies includes: injunctive relief, including “positive” relief requiring the restructuring
of a company or the implementation of certain practices, criminal fines against both corporations
and individuals and prison sentences against individuals and civil fines or equitable monetary
remedies, including the disgorgement of ill-gotten gains and restitution. 137The specific remedies
for different anticompetitive conduct under US antitrust laws will going to be addressed below.
3.1.1. Remedies for prohibited restrictive agreements
A) Criminal remedy
The rules which govern criminal remedies for victims of horizontal and vertical agreements
under US antitrust laws are section 1 of Sherman Act. Section 1 of Sherman Act states that:
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint
of trade or commerce among the several States, or with foreign nations, is declared to be
illegal. Every person who shall make any contract or engage in any combination or
conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on
conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation,
or, if any other person, $350,000, or by imprisonment not exceeding three years, or by
both said punishments, in the discretion of the court.”
As per text of this provision of law, corporate person and natural person participated on
restrictive agreements are liable separately. For instance price fixing and related practice by
cartels often results in criminal penalty, fines and damages for private injured party in US.138
The text of US law does not tries to distinguish between remedies of victims of horizontal and
vertical agreements.139 But the doctrine developed by US courts and enforcement agencies draws
a sharp distinction. Only one kind of vertical agreement, to fix minimum resale prices, is clearly
illegal per se. Despite the per se label, resale price maintenance is not treated like horizontal
price fixing, in terms of remedy and enforcement.140

137
Ibid
138
Eleanor M.Fox, US and EU competition law: a comparison ( Institute for International Economics) <available
at>https://piie.com accessed on May 28, 2019
139
Organizations of Economic Cooperation and Development on competition law and policy (1998), United States -
The Role of Competition Policy in regulatory reform <available at> https:www.oecd.org/regreform/sectors
accessed on May 28, 2019
140
Ibid

24
Most vertical relationships are assessed under the rule of reason and are considered illegal only if
net anti-competitive effects are demonstrated. 141 The usual remedy for vertical agreement is an
injunction or cease and desist order, or damages in private cases.142
B) Civil remedies
Section 4 of the Clayton Act allows “any person . . . injured in his business or property by reason
of anything forbidden in the antitrust laws” to “recover threefold the damages by him sustained.
“This provision directly descends from the original Sherman Act, passed in 1890, which
included the same treble damages provision. From this provision of law it can be inferred that,
any person can brought civil suit to claim losses arise out of any types of anticompetitive
conducts under US antitrust law.
Treble damages have remained the rule in antitrust cases, despite periodic efforts to eliminate or
limit their availability. There are a few instances in which treble damages are not available. For
example, Congress has created a small number of statutory exemptions pursuant to which
plaintiffs’ damages are not automatically trebled. Congress has also provided for the elimination
of treble damages, in specified circumstances, for organizations that participate in the
Department of Justice’s (DOJ) corporate leniency program, which provides incentives to
participants in cartel activity to provide evidence to the DOJ for use in criminal prosecutions.
C) Administrative remedy
For substantive, non-criminal violations, the agencies can seek broad injunctive relief to prevent
future violations in US.143 For certain procedural violations, such as Hart-Scott-Rodino Act (HSR
Act) violations, and for breaches of consent decrees, both the DOJ and the Federal Trade
Commission (FTC) may seek civil fines.144
Some have argued that the authority of the U.S. antitrust agencies to seek civil fines should be
expanded beyond procedural violations, so that the antitrust agencies could seek civil fines for
substantive, non-criminal antitrust violations, just as antitrust enforcers in the European Union
and certain countries do.145
3.1.2. Remedies for of victims of Merger

141
Ibid
142
Ibid
143
US Department of Justice Antitrust Division (2011), Antitrust Division policy guide to Merger Remedies p,285
<available at> https:// www.justice.gov accessed on May 27, 2019
144
Ibid
145
Ibid

25
In US Antitrust Division under its 2011 policy guides to merger regulation, puts some basic
principles for evaluating of effective merger remedies. These are: first, effectively preserving
competition is the key to an appropriate merger remedy. 146 Second, the remedy should focus on
preserving competition, not protecting individual competitors.147 Third, a remedy needs to be
based on a careful application of legal and economic principles to the particular facts of a
specific case148.
Once the Division has determined that a merger is anticompetitive, the Division only considers
remedies that resolve the competitive problem and effectively preserve competition. 149 As the
Supreme Court has stated, restoring competition is the “key to the whole question of an antitrust
remedy.”150 Where a remedy that would effectively preserve competition is unavailable, the
Division will seek to block the merger.151
Under US antitrust law horizontal mergers, vertical mergers, and mergers with both horizontal
and vertical dimensions typically present different competitive issues and, as a result, different
remedial challenges.152 In cases in which neither conduct nor structural relief, nor a combination
of the two, would effectively preserve competition, the Division will seek to block the
transaction.153
Under US antitrust law the Agencies rely on structural remedies to preserve competition in the
vast majority of cases when a competitive problem results from a horizontal merger. 154 As it is
inferred from US policy guide to merger regulation, a divestiture remedy is appropriate in
majority of cases involving horizontal mergers.155
Though Conduct remedies can be particularly effective for dealing with competitive problems
raised by vertical merger, they are also sometimes used to address issues raised by horizontal
mergers (usually in conjunction with a structural remedy).156

146
Ibid
147
Ibid
148
Ibid
149
Ibid,p,3
150
Ibid
151
Ibid
152
Ibid,p,4
153
Ibid
154
Organization of Economic cooperation and development (2011), remedies in merger cases <available at
>https://www.oecd.org-daf-competition-remedy accessed on May 29, 2019.
155
US department of justice supra (n 156)5
156
Organization of Economic cooperation and development (1998) supra (n 152)223

26
Under US antitrust law, in case of vertical merger the appropriate remedy is behavioral remedies
in principle.157 Exceptionally The Division also will consider structural remedies in vertical
merger matters particularly they are effective when the vertical integration is a small part of a
larger deal.158
Mergers sometimes have both horizontal and vertical dimensions. These types of mergers can
present combinations of the challenges. 159 Effective remedies in these situations may require a
combination of structural and conduct provisions affecting multiple markets. 160The specific
administrative, civil and criminal remedies of merger conduct available under US antitrust laws
are addressed below.
A) Administrative remedies
In US, FTC if it had the opinion of the provision of US antitrust law govern mergers are violated,
can impose cease and desist order such person from such violations and divest itself of the stock,
or other share capital, or assets, held or rid itself of the directors chosen contrary to the
provisions of sections 18 and 19 of clayton Act.161
In US, FTC is not empowered to impose administrative penalty against acts of prohibited merger
under antitrust law.
B) Civil remedies
In US, Any person, or any officer, director, or partner thereof, who fails to comply with any
provision merger regulation shall be liable to the United States for a civil penalty of not more
than $10,000 for each day during which such person is in violation of this section. 162 Such
penalty may be recovered in a civil action brought by the United States.163
In US, any person who shall be injured in his business or property by reason of anything
forbidden in the antitrust laws may sue therefor in any district court of the United States in the
district in which the defendant resides or is found or has an agent, without respect to the amount
in controversy, and shall recover threefold the damages by him sustained, and the cost of suit,
including a reasonable attorney's fee.164

157
US department of justice supra (n 143)5
158
Ibid
159
Ibid, p, 6
160
Ibid
161
§11 Clayton Act, 15 U.S.C. § 21 subsection (b)
162
§ 7A Clayton Act, 15 U.S.C. § 18a subsection (g)
163
Ibid
164
§ 4 Clayton Act, 15 U.S.C. § 15, subsection (a)

27
 C) Criminal remedies
In US, as it is inferred from section 21(k) (1) of Clayton Act, violation of merger regulation
provision is not declared as a crime. Section 21(k) (1) of Clayton Act stipulates that:
Any person who violates any order issued by the commission, board, or Secretary under
subsection (b) of this section after such order has become final, and while such order is in
effect, shall forfeit and pay to the United States a civil penalty of not more than $5,000
for each violation, which shall accrue to the United States and may be recovered in a civil
action brought by the United States. Each separate violation of any such order shall be a
separate offense, except that in the case of a violation through continuing failure or
neglect to obey a final order of the commission, board, or Secretary each day of
continuance of such failure or neglect shall be deemed a separate offense.
In US, corporation’s directors, officers or agents are criminally liable with corporation form
merger and shall be punished by a fine of not exceeding $5,000 or by imprisonment for not
exceeding one year, or by both, in the discretion of the court.165
3.1.3. Remedies for Victims of Abuse of Dominance
A) Criminal remedies
Under US antitrust law, the main rule which govern criminal remedies for monopolies are
section 2 of Sherman Act. Section 2 of Sherman act states that:

“Every person who shall monopolize, or attempt to monopolize, or combine or conspire

with any other person or persons, to monopolize any part of the trade or commerce
among the several States, or with foreign nations, shall be deemed guilty of a felony, and,
on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a
corporation, or, if any other person, $350,000, or by imprisonment not exceeding three
years, or by both said punishments, in the discretion of the court.”
Thus from this provision of law it is understood that violation of this provision of law is resulted
to criminal punishment.
B) Civil remedies
Under US antitrust law individuals injured by monopolist conduct can seek civil damage under
section 15(a) of Clayton Act. Section 15(a) of Clayton Act states that:

165
§ 14 Clayton Act, 15 U.S.C. § 24

28
 “Except as provided in subsection (b) of this section, any person who shall be injured in
his business or property by reason of anything forbidden in the antitrust laws may sue
therefor in any district court of the United States in the district in which the defendant
resides or is found or has an agent, without respect to the amount in controversy, and
shall recover threefold the damages by him sustained, and the cost of suit, including a
reasonable attorney's fee. The court may award under this section, pursuant to a motion
by such person promptly made, simple interest on actual damages for the period
beginning on the date of service of such person's pleading setting forth a claim under the
antitrust laws and ending on the date of judgment, or for any shorter period therein, if the
court finds that the award of such interest for such period is just in the circumstances. In
determining whether an award of interest under this section for any period is just in the
circumstances, the court shall consider only—
1.whether such person or the opposing party, or either party's representative, made
motions or asserted claims or defenses so lacking in merit as to show that such party or
representative acted intentionally for delay, or otherwise acted in bad faith;

2. whether, in the course of the action involved, such person or the opposing party, or
either party's representative, violated any applicable rule, statute, or court order providing
for sanctions for dilatory behavior or otherwise providing for expeditious proceedings;
and

3. Whether such person or the opposing party, or either party's representative, engaged in
conduct primarily for the purpose of delaying the litigation or increasing the cost
thereof.”

In addition to this many US State antitrust laws provide for civil penalties. 166 Thus the injured
private parties because of monopoly can brought a claim for compensation in US.

C) Administrative remedies

On the consumer protection side, the FTC can seek civil penalties for violations of its rules or its
cease and desist orders.167

166
First Harry, supra note 47 p,1
167
Ibid

29
3.1.4. Remedies for victims of unfair competition

A) Civil remedies

Civil remedies for unfair competition provided under US antitrust laws take mainly two forms:
injunctive relief and damages. Section 16 of the Clayton Act, which is the primary statutory
source for private injunctive relief, provides that "any person, firm, corporation, or association
shall be entitled to sue for and have injunctive relief, in any court of the United States having
jurisdiction over parties, against threatened loss or damage by a violation of the antitrust laws.168

In addition to the injunctive relief initiated by a private party, the Clayton Act also provides two
additional injunctive proceedings. First, Section 15 of the Clayton Act empowers the Justice
Department to institute proceedings in equity to prevent and restrain violations of antitrust laws
by way of petitioning the district court.169Second, Section 11 of the Clayton Act empowers the
Federal Trade Commission to issue cease and desist orders against an entity or an individual
whom the Commission has found in violation of antitrust laws.170

Section 15(a) of the Clayton Act, which is the primary statutory source for damage relief for
violation of U. S. antitrust laws, provides that:

Any person who shall be injured in his business or property by reason of anything
forbidden in the antitrust laws may sue therefore in any district court of the United States
and shall recover threefold the damages by him sustained, and the cost of suit, including a
reasonable attorneys' fee.

In US, addition to claims of remedy by private victims of unfair competition there is also civil
penalty imposed by courts against acts of unfair conducts. Section 45(l) of Federal Trade
commission act stipulates that:

(l) Penalty for violation of order; injunctions and other appropriate equitable relief

Any person, partnership, or corporation who violates an order of the Commission after it
has become final, and while such order is in effect, shall forfeit and pay to the United
States a civil penalty of not more than $10,000 for each violation, which shall accrue to

168
Section 16 of Clayton Act, 15 U.S.C. S.26
169
Ibid, S.25
170
Ibid s.21

30
 the United States and may be recovered in a civil action brought by the Attorney General
of the United States. Each separate violation of such an order shall be a separate offense,
except that in a case of a violation through continuing failure to obey or neglect to obey a
final order of the Commission, each day of continuance of such failure or neglect shall be
deemed a separate offense. In such actions, the United States district courts are
empowered to grant mandatory injunctions and such other and further equitable relief as
they deem appropriate in the enforcement of such final orders of the Commission.

B) Administrative remedies

As it is inferred from section 45(a) of US Federal Trade Commission Act, FTC is empowered to
impose cease and desist order on business persons involved in unfair competition. Section 45(b)
of US antitrust law stipulates:

(b) Proceeding by Commission; modifying and setting aside orders

Whenever the Commission shall have reason to believe that any such person, partnership,
or corporation has been or is using any unfair method of competition or unfair or
deceptive act or practice in or affecting commerce, and if it shall appear to the
Commission that a proceeding by it in respect thereof would be to the interest of the
public, it shall issue and serve upon such person, partnership, or corporation a complaint
stating its charges in that respect and containing a notice of a hearing upon a day and at a
place therein fixed at least thirty days after the service of said complaint. The person,
partnership, or corporation so complained of shall have the right to appear at the place
and time so fixed and show cause why an order should not be entered by the Commission
requiring such person, partnership, or corporation to cease and desist from the violation
of the law so charged in said complaint.

Under US antitrust laws, FTC is not empowered to impose administrative penalty against acts of
unfair competitions.

C) Criminal remedies

Acts of unfair competition is not declared as crime under US antitrust law.

31
3.1.5. Applicable assessment and objectives of remedies for anticompetitive conduct under
US antitrust laws

Under US antitrust law any person injured in his business or property by reason of anything
forbidden in the antitrust laws to recover threefold the damages by him sustained, the costs of
suit and including a reasonable attorney’s fee. 171As is clear from the language of Section 4 of
Clayton act, damages in a U.S. civil antitrust case are based on loss to the plaintiff, not gain by
the infringer. Where a violation of the antitrust laws is found, these damages are automatically
trebled.

At the time Senator Sherman and others argued that multiple damages should be “commensurate
with the difficulty of maintaining a private action,” punitive, and provide incentives to plaintiffs
to act as private attorneys general.172

The first broadly recognized purpose of treble damages is deterrence. 173 To eliminate the
incentive to engage in anticompetitive conduct, a violator must be exposed to forfeiture of
potential gains from such conduct.174

Professor Edward D Cavanagh, in his statements before the Antitrust Modernization

Commission states that the main goal of US trebling damage in private antitrust actions are: 1)
compensation of victims; 2) deterrence; 3) forfeiture of ill-gotten gains and 4) punishment.175

With regards to standards of assessment of compensation for violation of antitrust law in US, the
most methods used are ‘before and after comparison’ which is employed by economics
experts.176 That is comparing the average price paid by the plaintiffs during the cartel activity to
the average price they paid before it began or after it ended.177

171
Ibid, Sec.15(a)
172
Deborah A Garza Chair and etal, Antitrust modernization commission ,reports and recommendation (2007) 241
173
Ibid, p, 246
174
Ibid
175
Statements of Edward D Cavanagh before Antitrust Modernization Commission(July 28, 2005 Washington DC)
available at https://govinfo.library.unt.edu/amc accessed on June 12, 2019
176
Organizations for Economic Cooperation and Development (2011) quantification of Harm to competition by
national courts and competition agencies, <available at>
177
Ibid,p,167

32
The US Sentencing commission enacted sentencing guidelines manuals in November 1, 1987.
Through using this sentencing manuals the US court assess the punishment for violation of
antitrust laws.

The Sentencing Guidelines contain a specific section for the calculation of fines for
Organizations convicted of criminal antitrust conduct. The Sentencing Guidelines call for the
calculation of a “base fine” that is then adjusted for culpability. 178 The base fine is in most cases
determined by the pecuniary loss caused by the organization’s violation. Pecuniary loss is
calculated as 20 percent of the volume of commerce affected by the defendant’s anticompetitive
conduct (referred to herein as the “20 percent harm proxy”).179 The base fine is then multiplied
by a minimum and maximum culpability multiplier, and the sentencing judge may impose a fine
anywhere within the range calculated.180 The culpability multiplier may range from 0.75 to 4.0,44
which depends on various factors relevant to the defendant’s culpability, such as the size of the
organization and whether the defendant cooperated with the investigation or accepted
responsibility.181The Sentencing Commission established the 20 percent harm proxy in 1991 so
that courts could “avoid the time and expense that would be required to determine the actual gain
or loss.”182

3.1.6. Enforcement of remedies for cross-border anticompetitive conducts under US

antitrust law.

US is a party to international treaty including bilateral treaty with Australia, Canada, the
European Union, and Japan. These agreements oblige the United States to cooperate with foreign
competition policy authorities along certain dimensions such as the exchange of information and
the coordination of simultaneous investigations.183 Since US is a member of WTO, having
discrimination between nationals and non-nationals are prohibited under GATT, it has its own
limitation on US to treat different nationals likely.184

178
Deborah A Garza Chair Supra (n 172 )300
179
Ibid
180
Ibid
181
Ibid
182
Ibid
183
Alvin K. Klevorick and Alan O. Sykes (2007) United States Courts and the optimal deterrence of International
Cartels: A welfarist perspectives on Empagran.(Cowles foundation for research in economics, Yale University)p,30
184
Ibid

33
In the contrary to the above international obligations Under US Webb pomerene Act,
international cartels formed out of US is exempted from liability in US unless it has adverse
effect on US consumers and competitors.185 From this act US policy is seems favoring national
welfares rather than global welfare. This is due to its concern only to interest of US nationals. In
addition to this as per FTAIA act which is an amendments to the Sherman Act and Empagran
case, U.S courts do not have a subject matter jurisdiction over conduct that does not have a
“direct, substantial, and reasonably foreseeable effect” on U.S. consumers engaged in domestic
or import commerce, or on firms in the U.S. engaged in export commerce.186

In enforcing the federal antitrust laws, the Agencies (the antitrust division of US Department of
justice and Federal Trade Commission) consider international comity. 187 That is in determining
whether to investigate or bring an action, or to seek particular remedies in a given case, the
Agencies take into account whether significant interests of any foreign sovereign would be
affected.188

In some instances, a foreign government may be involved in anticompetitive conduct that

involves or affects U.S. commerce. In such cases while determining whether to conduct an
investigation or to file an enforcement action in cases in which foreign government involvement
is known or suspected, the Agencies consider four legal doctrines that lie at the intersection of
government action and the antitrust laws: (1) foreign sovereign immunity; (2) foreign sovereign
compulsion; (3) act of state; and (4) petitioning of sovereigns.189

With regards to appropriate remedies for cross-border anticompetitive conducts, US agencies

seek remedies that effectively address the harm.190 These remedies includes conducts or assets
outside the United States only to the extent that including them is needed to effectively redress
harm or threatened harm to U.S. commerce and consumers and is consistent with the Agency’s
international comity analysis.191

185
Alvin K. Klevorick and Alen O. Syke supra (n 183)32
186
Ibid
187
U.S. Department of Justice and Federal Trade Commission (2017), antitrust guidelines for international
enforcement and cooperation <available at>https://www.ftc.gov/public_statement accessed on June 14, 2019
188
Ibid
189
Ibid,p,29
190
Ibid,p,47
191
Ibid

34
In sum, US is concerned with cross-border anticompetitive conduct that have adverse effect on
US consumer and competitors. Thus it could be argued that US is not worrying for
anticompetitive conduct committed by its nations abroad as far as it has no effect on its
consumers and competitors.

3.1.7. Institutional framework for adjudication of anticompetitive conducts under US

antitrust laws

Competition laws is implemented through a dual enforcement system in US.192This dual

enforcement reflects the U.S. Constitution's division of power between federal and state
governments.193 Antitrust federalism has come to signify that the state and federal governments
play distinct, yet complementary roles in regulating the competitive process.194

In the US there are different institutional framework for adjudication of anticompetitive conduct
at federal and state levels. Thus, types and roles of these institutions will be discussed here
under.

A) Institutional framework for enforcement of antitrust law at federal level

In US the responsible institutions for enforcing federal antitrust laws are the antitrust division of
Department of Justice, the federal trade commission bureau of competition and Federal courts.195

The US Department of Justice is empowered to prosecute violations of antitrust laws, including

the Sherman Act, the Clayton Act, and the Robinson Patman Act. 196 It holds the sole power to
prosecute criminal antitrust violations and all federal antitrust actions in several sectors,
including banking, telecommunications, and rail and air transportation. 197 DOJ can also claim for
civil remedies in addition to criminal remedies for violations of US antitrust laws.198

192
Barry E Hawk and Laraine L. Laudati Supra (n 9)18
193
Ibid
194
Ibid
195
Barry E Hawk and Laraine L. Laudati Supra (n 9)23
196
Ibid
197
Ibid
198
Pierce, Richard J., Comparing the Competition Law Regimes of the United States and India (2017). GWU Law
School Public Law Research Paper No. 2017-27; GWU Legal Studies Research Paper No. 2017-27.<available
at>https://ssrn.com/abstract=2951944 accessed on June 18, 2019

35
With regards to regional branches, The Antitrust Division has seven field offices throughout the
United States to facilitate enforcement in matters of regional concern. 199 Their responsibility is to
perform the Antitrust Division's investigatory and litigation functions, within their geographic
area of responsibility200.

The federal trade commission bureau of competition is primarily responsible for enforcing the
Federal Trade Commission Act, which encompasses the antitrust provisions of the Sherman Act,
the Clayton Act, and the Robinson-Patman Act, among others. 201FTC staff includes lawyers who
have a good understanding of principles of microeconomics and economists who have a good
understanding of antitrust law.202 All its investigation, administrative proceeding, and court
proceeding is staffed by a team that includes economically literate lawyers and legally literate
economists.203

The FTC can entertain under its’ administrative proceedings cases of unfair methods of
competition or unfair or deceptive act or practice in or affecting commerce and If upon such
hearing the Commission shall be of the opinion that the method of competition or the act or
practice in question is prohibited by this Act, it shall make a report in writing in which it shall
state its findings as to the facts and shall issue and cause to be served on such person,
partnership, or corporation an order requiring such person, partnership, or corporation to cease
and desist from using such method of competition or such act or practice.204

The federal trade commission have the power to commence civil action against any person,
partnership, or corporation violates any rule under this Act respecting unfair or deceptive acts or
practices (other than an interpretive rule, or a rule violation of which the Commission has
provided is not an unfair or deceptive act or practice in violation of section 5(a).205

With regards to its regional branches, FTC have maintains ten regional offices. 206 The main
responsibility of regional office is to initiate and conduct investigations.207

199
Barry E Hawk and Laraine L. Laudati Supra (n 9)24
200
Ibid,p,25
201
Ibid,p,24
202
Pierce, Richard J, Supra (n 198)3
203
Ibid
204
US Federal Trade Comission Act, Sec,5(b)
205
Ibid, Sec. 19(1)
206
Barry E Hawk and Laraine L. Laudati Supra (n 9)25
207
Ibid

36
In US FTC is established as independent executive agencies. 208 In US most independent
regulatory agencies have the authority to conduct investigations, impose fines or other civil
penalties and otherwise limit the activities of parties proven to be in violation of federal
regulations. For example FTC often halts deceptive advertising practices and forces business to
issue refunds to consumers. Their general independence from politically motivated interference
or influence gives the regulatory agencies the flexibility to respond rapidly to complex cases of
abusive activities.

In addition to the above stated federal enforcing agencies, federal courts play a vital role in the
enforcement of federal antitrust law, as they have exclusive jurisdiction to adjudicate claims
under those laws.209

Up on the complaint filed by DOJ or FTC, Federal courts have the power to provide any of the
civil or criminal remedies authorized by the antitrust laws.210 They also have the power to review
any action that FTC has taken through use of its internal procedures to determine whether the
FTC action is consistent with the antitrust laws, supported by substantial evidence and not
arbitrary and capricious.211

In the US, Federal courts may have jurisdiction to decide state antitrust claims originally filed in
state court if the defendant removes the case to federal court. 212 Federal law allows the removal
of any civil action of which the district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties or laws of the United States. 213 Pendentstate claims,
which are claims made under state antitrust law arising out of the same facts or circumstances as
federal claims, may be removed to federal court along with federal law claims.214

In sum, in the US, DOJ is the only institution that is authorized to ask a court to impose criminal
penalties against a firm for violating antitrust law.DOJ, FTC, a state Attorney General, or a
private party with antitrust standing can seek civil remedies against firms that they allege to have
violated antitrust law by filing a complaint in a federal court.
208
Robert Longley, Independent executive agencies of US Government <available
at>https:www.thoughtco.com/independence accessed on August 21, 2019.
209
Ibid,p,26
210
Pierce, Richard J, Supra (n 198)4
211
Ibid
212
Barry E Hawk and Laraine L. Laudati Supra (n 9)27
213
Ibid
214
Ibid

37
 B) Institutional framework for enforcement of antitrust laws at State level

In the US, state antitrust law enforcement is carried out by state attorneys general and state
courts.215The office of the Attorney General of each of the fifty states has the power to enforce
both federal and state antitrust laws.216State Attorney Generals can sue firms for violating federal
antitrust law on behalf of the citizens of their states. 217 This power of state attorney general is
included under the 1976 Hart-Scott-Rodino enacted by Congress.218They can ask a court to
impose on the defendants any of the civil penalties authorized by antitrust statutes.219

C) Coordination among US Federal antitrust enforcing agency.

US federal antitrust enforcement agency developed a liaison mechanism in 1949 to coordinate

their enforcement responsibility.220 Through this mechanism, the staff of two agencies have a
contact to a liaison office whose clearance is needed before work begins while they need to make
investigation.221This mechanism has functioned well to prevent duplication of effort, as the two
agencies have never considered the same transaction at the same time.222

To develop coordination more, the two agencies have made activities like issuance of joint
guidelines to which both agencies subscribe and they also announced that they will undertake
new measures to streamline the pre-merger review required under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976.223

D) Coordination among US State Attorney Generals

In US, the key organizational vehicle for cooperation among the fifty-five state jurisdictions is
the National Association of Attorneys General (“NAAG”). 224Through its central office in
Washington, D.C., NAAG has helped coordinate the states’ efforts in investigation, litigation,

215
Barry E Hawk and Laraine L. Laudati Supra (n 9)27
216
Ibid,p,
217
Pierce, Richard J, Supra (n 198)4
218
Harry First and etal (2012) Procedural and Institutional Norms in Antitrust Enforcement: The U.S. System
( NELLCO Legal Scholarship Repository, New York School of Law 2012)5
219
Pierce, Richard J, Supra (n 207)4
220
Barry E Hawk and Laraine L. Laudati Supra (n 9)25
221
Ibid,p,26
222
Ibid
223
Ibid
224
Harry First and etal supra (n 218)11

38
lobbying, and training.225 In addition, the states, through NAAG, have put together a number of
agreements formalizing some of the relationships that have evolved to handle multistate merger
enforcement, joint state and federal merger enforcement, and joint state and federal criminal
investigations.226

3.2. Remedies for victims of anticompetitive conducts under South Korean competition
laws.

Korea government enacted Monopoly regulation and fair trade act (here in after MRFTA), its
main competition law in 1980.227In general, there are three types of remedies an injured party
may seek under this Statute. Specifically, they include administrative remedy, criminal sanction
and civil remedy228. What distinguishes an administrative remedy from the other two is that, as
their names may suggest, administrative remedies are rendered by a regulatory agency while the
other two are rendered by the court.229Administrative remedies in general may be classified into
two main categories. One relates to issuing any one of several corrective orders and the other
relates to imposing monetary fines.230The specific remedies for different anticompetitive conduct
under South Korea competition laws will going to be addressed below.

3.2.1. Remedies for victims of restrictive anticompetitive agreements.

Korean competition law doesn’t distinguish between remedies for vertical and horizontal
agreements. The types of remedies for anticompetitive agreements included under Korean
competition law will be addressed below.

A) Administrative remedies

As per Art. 21 of MRFTA, where there is commission of act of restrictive agreements, the KFTC
is empowered to order the discontinuance of an act, publicly announce the act of receiving
corrective order, or take other corrective measures.

225
Ibid
226
Ibid
227
Dong Won Suh, Enforcement Direction of Competition Law (2005) 4 JKL 29
228
Ibid, p, 138
229
Ibid
230
Ibid

39
In addition to this, KFTC up on commission of act of restrictive agreements is empowered to
impose a surcharge not exceeding an amount equivalent to 10 percent of the turnover. 231In the
case of an absence of turnover, etc. a surcharge may be imposed up to but not exceeding two
billion won.232

B) Civil remedies

As it is stated under Art. 56 of MRFTA, an injured person can bring civil suit against the
violator to recover monetary compensation for the damage it incurred unless the violator
proof that they did not intend to make any faults and there is no mistakes. From this
provision of the law it is understood that without distinguishing types of anticompetitive
conducts committed, injured party can claim damage from the violators. In addition to this,
Since the KFTC does not have any authority to order any injured party to raise or not raise
such civil claim against offenders, the issue as to whether or not to bring such claim is totally
dependent upon the injured party in Korea.

C) Criminal remedies

A person who has conducted unfair collaborative practices or let others involve in unfair
collaborative practices that unfairly restrict competition shall be punished by imprisonment for
not more than three years or a fine up to but not exceeding two hundred million won.233

In addition to this, a person who has failed to comply with corrective measures or an order of
prohibition following commission of prohibited restrictive agreements shall be punished by
imprisonment for not more than two years or a fine up to but not exceeding one hundred fifty
million won.234

3.2.2. Remedies for victims of Abuse of Dominance

The Korean MRFTA which is the country’s main competition law, includes different types of
remedies for victims of abuse of dominance. The specific types of remedies for victims of abuse
of dominance will be addressed as below.

231
Korean Monopoly Regulation and Fair Trade Act no.7335 (2004) Art.22
232
Ibid
233
Ibid, Art. 66(1)(9)
234
Ibid, Art. 67(6)

40
 A) Administrative remedies

Where the act of abuse of dominance committed the KFTC is empowered to impose
administrative remedies like ordering the market-dominating enterpriser involved to reduce
prices, to discontinue the act that is a violation, to announce the fact of corrective order to the
public, and to take other measures necessary for correction.235

In the case of abuse of dominance by market dominating enterpriser, the KFTC may also impose
on such enterpriser a surcharge not exceeding an amount to 3% of the turnover. 236Where it is
difficult to compute the turnover, surcharges may be imposed up to but not exceeding one billion
Won.237

B) Civil Remedies

Art. 56 of MRFTA recognizes civil suits by any person up on inflicting injuries against those
person who violate the act. Thus through this provision of law any person injured by abuse of
dominance as the one injured by restrictive agreements, can claim damages arise on him due to
this conduct.

C) Criminal remedies

A person who has committed an abusive dominance shall be punished by imprisonment for not
more than three years or a fine up to but not exceeding two hundred million won.238

A person who has failed to comply with corrective measures or an order of prohibition given by
KFTC following commission of abuse of dominance shall be punished by imprisonment for not
more than two years or a fine up to but not exceeding one hundred fifty million won.239

3.2.3. Remedies for victims of unfair competition

235
Monopoly Regulation and Fair Trade Act supra (n 231 ) Art. 5
236
Ibid, Art, 6
237
Ibid
238
Ibid, Art.66(1)
239
Ibid, Art, 67(6)

41
Like other remedies of anticompetitive conducts discussed above, the Korean competition law
includes different types of remedies for injured parties by act of unfair competition. The specific
types of remedies for victims of unfair competition under Korean competition laws will be
addressed below.

A) Administrative remedies

Where unfair trade practice committed, the KFTC is empowered to impose administrative
remedies like: ordering the enterpriser concerned to discontinue those unfair business practices,
to delete any pertinent provisions from the contract, to announce the fact of receiving corrective
order to public, or to take any other necessary corrective measures against that act.240

In case of occurrence of unfair trade practice, the KFTC may also impose a surcharge not
exceeding the amount equivalent to 2% of the turnover.241 Exceptionally it may impose up to 5%
of turnovers where an act assisting a person with a special interest or other companies by
providing advanced payment, loans, manpower, immovable assets, stocks and bonds, or
intellectual properties thereto, or by transacting under substantially favorable terms therewith. In
the case of absence of the turnover, a surcharge may be imposed up to but not exceeding five
hundred million won.242

B) Civil remedies

Art. 56 of MRFTA recognizes civil suits by any person up on inflicting injuries against those
person who violate the act. Thus through this provision of law any person injured by unfair trade
practice can claim damages arise on him due to this conduct.

C) Criminal remedies

With regards to criminal remedies related with unfair competition, a person who has failed to
comply with corrective measures or an order of prohibition up on commission of unfair
competition shall be punished by imprisonment for not more than two years or a fine up to but
not exceeding one hundred fifty million won.243

240
Ibid, Art.24
241
Ibid Art.24(2)
242
Ibid
243
Ibid, Art.67(6)

42
3.2.4. Remedies for victims of Merger

Korean competition law also includes different types of remedies for victims of restricted merger
(combination of enterprises as stated under Korean Monopoly Regulation and Fair Trade Act).
The specific types of remedies for victims of the conduct of restricted merger under Korean
competition laws will be addressed below.

A) Administrative remedies

Under Korean MRFTA up on different types of merger conducts, KFTC may impose different
types of administrative remedies. For instance, where a combination of enterprises suppresses
competition in a particular business area KFTC may impose administrative remedies like:
Cessation of the practice concerned, Disposition of all or part of the stocks, Resignation of
officers, Transfer of business; Cancellation of debt guarantees, Publication of the fact of
receiving corrective order, Restrictions on business method or business scope to prevent the
negative effects of restricted competition pursuant to the combination of enterprises, and Other
necessary corrective measures to reprimand such a violation.244

In case where any one directly or through a person determined by presidential decree as having
special interest substantially lessen competition and where a person has incorporate another
company by a coercive or any other unfair method, the KFTC may file a law suit to nullify the
said establishment of a company or the said merger of companies.245

KFTC is also empowered to impose financial remedies as administrative remedies. For instance,
if any company belonging to business group subject to the limitations on cross- shareholding
under presidential decrees acquires or owns shares of an affiliated company which acquires or
owns its stocks, KFTC may impose surcharge up to but not exceeding 10% of purchase price of
stocks so acquired or owned.246 Where Business Group subject to the limitations on debt
guarantees give debt guarantees to its domestic affiliated companies, KFTC may impose a

244
Ibid, Art.16(1)
245
Ibid, Art. Art 16(2)
246
Ibid, Art.17(1)

43
surcharge up to but not exceeding ten percent of the value of the debt guarantee in question. 247 In
the same way KFTC may also impose surcharge up to but not exceeding 10% of the debt amount
exceeding the total capital on the balance sheet, where holding company holds debts surpassing
the total amount of capital in the balance sheet for two years since the establishment or
transformation into holding company248and a surcharge up to but not exceeding 10% of the total
amount of book value on the balance sheet of the shares owned through violation where business
related sub-subsidiary of non-financial holding company own shares in domestic affiliates unless
domestic affiliated holds shares at the time of becoming business-related subsidiary and it has
been less than two years since becoming business related sub-subsidiary or When domestic
company, which is not affiliate but holds shares, became affiliate, and it has been less than a year
since it became affiliate.249

To implement Merger issues stipulated under MRFTA, KFTC amended Guidance on Imposing
Merger Remedies in December 2006. Under this guidance KFTC divides merger remedies for
addressing competitive concerns caused by a merger into structural and behavioral remedies, and
specify considerations that need to be taken into account to impose such remedies.250

In July 2011 structural remedies are preferred to behavioral remedies of anticompetitive merger
conducts by KFTC under its revised Guidance on Imposing Merger Remedies. 251In practice,
however, there are many instances where behavioral remedies are inevitable or used in a
complementary manner by KFTC.252 So deciding types of remedies require sufficient
consideration of the market environment surrounding the transaction.253

B) Civil remedies

As it is stated under Art. 56 (1) of Korean MRFTA an enterpriser or an enterprisers organization

which violates the provisions of this Act, and thereby inflicts on a person any damage, he or the
organization shall be liable for compensation of such damage to the person unless the enterpriser
or business associations prove that they did not intend to make any fault and there is no mistake.
247
Ibid, Art. 17(2)
248
Ibid, Art.17(4)
249
Ibid, Art.17(4) paragraph 3
250
Organization for economic co-operation and development, remedies in merger cases (30, July 2012) p, 145
<available at>https://www.oecd.org/daf/competition accessed on July 4, 2019
251
Ibid,p,146
252
Ibid
253
Ibid

44
Thus any private party which inflict injuries because of act of restricted merger (combination of
enterpriser), can bring civil suit against merging enterpriser.

C) Criminal remedies

Under Korean competition law too any person commit merger which affect competition is
criminally liable. Art.66(1) of Korean MRFTA sets forth that any person who violates Article 7
(1) shall be punished by imprisonment of up to three years or by a fine not exceeding 200
million Korean won.

3.2.5. Institutional framework for adjudication of anticompetitive conduct under South

Korean competition law

A) Fair Trade Commission (KFTC)

KFTC is established by MRFTA under Art.35 as an authority that enforces competition law. The
KFTC is a ministerial-level central administrative organization under the authority of the Prime
Minister.254The KFTC is a quasi-judicial and quasi-legislative body and it enforces the MRFTA
and other competition- related laws by establishing legal standards and making decisions on
what measures to take against various anti-competition conducts in the market.255

KFTC is located at Sejong city at central level and five regional offices in Busan, Gwangju,
Daejeon, Daegu, and Seoul.256 These regional offices are established for the purpose of managing
the affairs of the Commission regionally.257

KFTC is empowered to impose administrative remedies like cease and desist orders, corrective
measures, announcements of violation of law and surcharges.258 As per Art. 56 of MRFTA of
South Korea, KFTC is not empowered to entertain civil suit. Injured parties due to
anticompetitive conducts can bring civil suit under tort laws pursuant to Art.750 0f Korean Civil
Code.259

B) Courts
254
Monopoly regulation and fair trade act supra (n 244 ), Art.35(1)
255
Hawang Lee, developments of competition law in Korea, (ERIA discussion paper, November 2015) p,4 available
at https://www.eria-DP-2015-78 accessed on July 9, 2019
256
OECD (2018), Competition Law in Asia-Pacific: A Guide to Selected Jurisdictions,p,96
257
Ohseung Kwon, Retrospect and prospect on the Korean antitrust law (2005) 4 JKL 8
258
Hawang Lee, Supra (n 255) p,5
259
Sung-Eyup Park, Korean competition Statutes: its limits and measures for improvements (2005) 4 JKL 145

45
In Korea the power to entertain civil and criminal case is given to courts as it is understood from
Art. 56 and 71 of Korean MRFTA.

3.2.6. Legal and institutional framework of governing remedies of cross-border

anticompetitive conducts.

As per Article 2-2 of KMRFTA even though any activities are taken place in overseas, if they
have any influence on domestic market, the Act shall be applied. To facilitate international
cooperation in relation to enforcing cross-border remedies for anticompetitive conducts, KFTC
has been signed bilateral agreements with 15 competition authorities of other countries including
the EU, the US DOJ, the US FTC, Japan, China, Russia, Brazil, Australia, Latvia, CIS, Mexico,
Turkey, Canada and Indonesia amongst others.260

3.3. Remedies for victims of anticompetitive conducts under Brazil antitrust laws

Currently, the competition law which governs remedies for victims of anticompetitive conducts
in Brazil are law no.12, 529/2011. Unlike competition law of many countries, Brazil competition
law doesn’t contain different provisions for conducts like restrictive agreements and abuse of
dominance.

The specific remedies for victims of different types of anticompetitive conducts addressed by
this law is discussed below.

3.3.1. Remedies for victims of anticompetitive agreements and Abuse of dominance.

The remedies of both restrictive agreements and abuse of dominances are covered under the
same provisions of law. It is article 37 and 38 of law no.12, 52911 which covers the remedies for
these conducts.

A) Administrative remedies

As per the law no.12, 52911, the Brazilian administrative council for economic defense (hear
after known as “CADE”) authorized to take different types of administrative remedies up on
violation of the competition law related to restrictive anticompetitive conducts and abuse of
market dominance.

260
OECD (2018), Supra (n 256)p,96

46
As it is stated under Art.37 (I) of law no.12, 529/11 if the violator is company the fine
administrative remedy is 0.1% to 20% over the gross sales of the company, group or
conglomerate, in the last fiscal year before the establishment of the administrative proceeding
and it will never be less than the advantage obtained if it could be estimated.

If the violators are natural persons or public or private legal entities as well as any association of
persons or de facto or de jure legal entities even if temporarily, incorporated or unincorporated,
which do not perform business activity, not being possible to use the gross sales criteria, the fine
will be between fifty thousand reais (R$ 50,000.00) to two billion reais (R$ 2,000,000,000.00).261

If the violators are company’s administrator and it is proofed that they violate the law
intentionally or negligently, the fine penalty put for company above from 0.1% to 20% is
imposed on them.262

Apart from fines, CADE may also impose individually or cumulatively with the above stated
remedies like ordering the publication of the decision in a major newspaper, at the wrongdoer’s
expense; debar wrongdoers from participating in public procurement procedures and obtaining
funds from public financial institutions for up to five years; include the wrongdoer’s name in the
Brazilian Consumer Protection List; recommend tax authorities to block the wrongdoer from
obtaining tax benefits; recommend the intellectual property authorities to grant compulsory
licenses on patents held by the wrongdoer; and prohibit individuals from exercising market
activities on his/her behalf or representing companies for five years.263As for structural remedies,
under the law, CADE may order a corporate spin-off, transfer of control, sale of assets or any
measure deemed necessary to cease the detrimental effects associated with the wrongful
conduct.264

Brazilian Ministry of justice collects the fine imposed as penalty and redirected to Brazilian
society by means of actions that seek to repair damage to the environment, consumers, assets and
rights of an artistic, aesthetic, historical, tourism, landscape and economic nature, and other
diffuse and collective interests.265
261
Brazilian antitrust law 2011, no. 12, 529, Article 37 (II)
262
Ibid, Article 37 (III)
263
Ibid, Article 38 (I)-(V)
264
Ibid, Article 38 (VI)
265
OECD (2019), OECD Peer Reviews of Competition Law and Policy: Brazil<available at.
www.oecd.org/daf/competition/oecd-peer-reviews-of-competition-law-and-policy-brazil-2019.htm accessed on

47
 B) Civil remedies

Brazilian competition law allows bringing civil suits by injured parties by acts of anticompetitive
conducts like anticompetitive agreements and abuse of dominance. Article 47 of Brazil antitrust
law no.12, 529/11 stipulates:

“The aggrieved parties, by themselves or by someone legally entitled referred to in

Article 82 of Law No. 8,078 of September 11, 1990, may take legal action in defense of
their individual interests or individual homogeneous interests, so that the practices
constituting violations to the economic order cease, and compensation for the losses and
damages suffered be received, regardless of the investigation or administrative procedure,
which will not be suspended due to filing of court action.”

Apart from damages claimed by private person there is collective action framework to bring civil
suit under Brazil antitrust law. Article 129 item III of the Federal Constitution, Federal public
prosecution office is authorized to file a public civil action on behalf of consumers or
undertakings harmed by anticompetitive conduct. In addition to this Article 82 of consumer
defense code no. 8, 078/1990 also authorizes public prosecution office and associations exist at
least for one years to institute collective action to claim damage by representing injured
consumers. However Private companies or individuals are not authorized to file class actions on
behalf of the parties injured by anticompetitive behavior under this provision of law.

C) Criminal remedies

Cartel is crime under Brazil economic law crimes no.8, 137/90 and punishable by criminal fine
and imprisonment from two to five years.266In addition to this fraudulent bidding practice is also
crime under Brazil public procurement law no.8, 666/93 and punishable by criminal fine and
imprisonment from two years to four years.267

3.3.2. Remedies of victims of Mergers

A) Administrative remedies

July 11, 2019.

266
CristianneZarzur and other (eds), overview of competition law in Brazil (Sao Paulo, 2015) p, 265
267
Ibid

48
In Brazil failure to notify a merger or the early consummation thereof prior to CADE’s approval
subjects parties to fines ranging from 60,000.00 Brazil money to 60,000,000.00 Brazil money.268

Apart from this administrative remedy, if CADE finds such violations have occurred, it can also
impose administrative remedies like: (i) all acts performed by the parties may be declared void,
which would require parties to windup the transaction, and (ii) parties may be subject to
investigations of anticompetitive behavior.269

B) Civil remedies

Article 5 (XXIV) of the Brazilian Federal Constitution establishes as a fundamental guarantee

that any injury or threat to a right may be referred to the Judiciary Branch. 270This is the basic
foundation for the prevention and redress of any and all damages under Brazilian
Law.271Moreover, Federal Law 10,406/2002 – the Brazilian Civil Code (CC) – sets out the right
to obtain compensation for any damages suffered due to wrongful or unlawful behavior. 272 This
general torts rule is applicable to virtually all disputes involving competition issues.273

C) Criminal remedy

Mergers are not declared as offence under Brazilian antitrust law no.12, 529/11 and under
Brazil’s Economic crimes law no. 8, 137/1990 too.

3.3.3. Remedies for victims of unfair competition

In case of Brazil unfair competition is not governed under its antitrust law no. 12,529/11 rather it
is governed under consumer defense code no.8, 078/1990.

A) Administrative remedies

268
Ibid, p,246
269
Ibid
270
OECD(2019) Supra (n 265) p,398
271
Ibid
272
Ibid
273
Ibid

49
As it is understood from article 56 of Brazil consumer defense code no. 8, 078/1990, up on
violation of consumer norms including unfair competition administration sanction like: fine,
product arrest, cancellation of the product registration at the competent body, prohibition of
product manufacture, suspension of product or service supply, temporary suspension of
activities, revocation of public services concession or permission, cancelation of business license
or operating permit, total or partial interdiction of establishment, construction or activity,
administrative intervention and imposition of counter advertising can be imposed.

Apart from the above administrative remedies fine penalty valued pursuant to the offense
severity and to the supplier’s economic situation can be imposed through administrative
proceeding as a remedies of unfair competition.274

B) Civil remedies

As in the case of merger stated above, any one whom inflicted injury because of acts of unfair
competition can bring a suit to claim compensation under Brazilian tort law.

C) Criminal remedy

Any person who make false or misleading statements or to omit relevant information pertaining
to the nature, characteristics, quality, quantity, safety, performance, durability, price or warranty
of products or services is punished by three months to one year of imprisonment and fine. 275
Apart from this anyone who show advertising that is known or should be known to be misleading
or abusive is punishable by three months to one year of imprisonment and fine.276

3.3.4. Institutions involved in adjudicating cases of anticompetitive conducts under

Brazilian antitrust law

A) Brazilian administrative council for economic defense (CADE)

CADE is the sole responsible organ to enforce competition law in Brazil in initiating and
deciding on administrative proceedings related to competition law violations, as well as
reviewing mergers.277

274
Brazilian consumer defense code no. 8, 078/1990, Article 57, Paragraph 1
275
Ibid, Article 66
276
Ibid, Article 67
277
OECD (2019) Supra (n 265) p,19

50
CADE’s structure consists of an Administrative Tribunal, the investigative branch of the General
Superintendence, and Department of Economic Studies.278 The Tribunal is in charge of decision-
making.279 The General Superintendence is entrusted with launching and carrying out
investigations, with responsibility for all antitrust and merger review functions. 280 The
Department of Economic Studies is responsible for conducting economic analyses and providing
greater economic certainty on the competitive effects of CADE’s decisions in the market.281

In general according to the current Brazilian antitrust law no. 12, 529/11, Cade is empowered to
conduct investigation, prosecution and adjudication cases related to anticompetitive conducts.282

CADE is part of the Federal Executive Branch and reports to the Ministry of Justice. 283 However,
despite its attachment to the Executive Branch, it is legally qualified as an “autarquia”(means the
legal entity created by law to perform typical governmental activities in a decentralized way
(Article 5 of the Decree Law 200/67).284 a specific type of independent government agency, and
the special legal regime established by the Antitrust Law ensures CADE a certain level of
independence from the Executive Branch, which is reflected in how its representatives are
chosen (CADE’s Commissioners, General Superintendent and General Counsel are appointed by
the President of the Republic, to act during a fixed term, through a complex mechanism that
requires Senate approval of such appointments), as well as in the impossibility of review of
CADE’s decisions within the scope of the Executive Branch.285

B) Court

As it is understood from cumulative reading of Article 47 and 48 of Brazil antitrust law

no.12,529/11, the power of entertaining civil claim is that of court rather than CADE.

278
Ibid
279
Ibid
280
Ibid
281
Ibid
282
Ibid, p,23
283
OECD(2019), Supra (note 265),p,371
284
Ibid
285
Ibid,p,372

51
In the Brazilian legal system, the right to submit to the courts that are part of the Judiciary
Branch any actual or threatened breach of a right is a constitutional principle that cannot even be
refused by law (Brazilian Constitution of 1988 Article 5, XXXV). 286 Acts performed by
administrative authorities, such as CADE, may therefore be challenged in court through
appeal.287

3.3.5. Brazilian Legal framework governs remedies of cross-border anticompetitive

conduct

Under Article 2 of the Brazilian Competition Law no. 12, 529/11, the competition regime applies
to conduct or practices which are performed on the territory of Brazil or that may produce any
effects on. From this provision of law, it is understood that Brazil has jurisdiction on competition
cases even where the actual conduct may have taken place outside the country but Brazilian
consumers have suffered as a result of the anti-competitive effects.

To address challenges related with remedies of cross-border anticompetitive conducts, CADE

relies on three measures: (i) informal co-operation with other agencies; (ii) confidentiality
waivers granted by the parties to an investigation; and (iii) bilateral co-operation agreements and
multilateral agreements.288

3.4. Remedies for victims of anticompetitive conducts under South African Competition
laws

Like that of different jurisdictions competition law discussed above, there are different types of
administrative, civil and criminal remedies against anticompetitive conducts under South African
competition laws too. The specific types of remedies for victims of anticompetitive conducts
under South African competition laws will be addressed below.

3.4.1. Remedies for victims of restrictive agreements and Abuse of dominance

A) Administrative remedies

286
Ibid,p,372
287
Ibid
288
Ibid,p,151

52
Under South African competition act no.89/1998, the law doesn’t make distinguish between
types of administrative remedies of restrictive agreements (both vertical and horizontal)
agreements and abuse of dominance.

When there is commission of restrictive agreements or abuse of dominance (prohibited practices

as South African context), competition Tribunal has the power to impose administrative order
like: interdicting any prohibited practice; ordering a party to supply or distribute goods or
services to another party on terms reasonably required to end a prohibited practice; declaring
conduct of a firm to be a prohibited practice in terms of this Act; declaring the whole or any part
of an agreement to be void and ordering access to an essential facility on terms reasonably
required.289

Apart from this, act of horizontal agreements which directly or indirectly fixing a purchase or
selling price or any other trading condition; dividing markets by allocating customers, suppliers,
territories, or specific types of goods or services; or collusive tendering, vertical agreements of
minimum resale price maintenance and committing act of abuse of dominance like charging an
excessive price to the detriment of consumers, engaging in an exclusionary acts like requiring or
inducing a supplier or customer to not deal with a competitor, refusing to supply scarce goods to
a competitor when supplying those goods is economically feasible, selling goods or services on
condition that the buyer purchases separate goods or services unrelated to the object of a
contract, or forcing a buyer to accept a condition unrelated to the object of a contract, selling
goods or services below their marginal or average variable cost and buying-up a scarce supply of
intermediate goods or resources required by a competitor can leads to administrative remedies
not more than 10% of the firm's annual turnover in the Republic and its exports from the
Republic during the firm's preceding financial year.290The Tribunal may also impose this penalty
when a firm is a repeat offender of conduct that does not constitute outright prohibited conduct
and that firm has previously been found to have contravened the Act.291

Structural remedies like: selling of firm’s share, interest or assets can also be imposed against act
of prohibited practice if the prohibited practice cannot adequately be remedied in terms of
another provision of this Act oris substantially a repeat by that firm of conduct previously found
289
Republic of South Africa’s competition law, no. 89/1998, Article 58(1) (a)
290
Ibid, Article 59 (1) and (2)
291
Ibid, Art. 59 (1) (b)

53
by the Tribunal to be a prohibited practice. 292However this remedies has effect only if it is
confirmed by competition appeal court.293

B) Civil remedies

Under South African competition law, a person's right to bring a claim for damages arising out of
a prohibited practice( means ‘restrictive agreements and abuse of dominance’ as per chapter two
of competition act no. 89/98) comes into existence, where on the date that the Competition
Tribunal made a determination in respect of a matter that affects that person.294 From this
provision of law it is understood that the issue concerning determination of prohibited practice is
jurisdiction of competition authorities and civil courts seen only damage arise out of prohibited
practice if the determination of prohibited practice made by competition tribunal (declaratory
order by competition tribunal with regards to existence of prohibited practice ). According to
South Africa’s competition act no. 89/98, civil court means a High Court or Magistrates Court,
as referred to in, sections 166 (c) and (d) of the Constitution.295 Thus private parties who want to
claim damages out of prohibited practice must apply to the Tribunal for a declaratory order
declaring the conduct of the respondent as a prohibited practice.

Under South African competition law, a person who has suffered loss or damage as a result of a
prohibited practice, may not commence action in a civil court if that person has been awarded
damages in a consent order.296

As it is understood from Article 65 of South African competition law act no.89/1998, the
procedure of claiming civil damages arise out of different types of anticompetitive conducts are
similar.

C) Criminal remedies

In South Africa, prohibited practice like restrictive agreements and abuse of dominance is not
declared as crime under competition law of the country. Procedural non-compliances like

292
Ibid, Art.60 (2) (a) and (b)
293
Ibid, Art. 60 (3)
294
Ibid, Article 65 ( 9) (a)
295
Ibid, Art. 1(1) (1) (c)
296
Ibid Article 65 (6)

54
hindering administration of act, failure to attend when summoned failure to answer fully and
failure to comply with interim or final order of competition authority are declared as offences
under chapter seven of competition act no.89/98.

Apart from the above stated offences, a person commits an offence if, while being a director of a
firm or while engaged or purporting to be engaged by a firm in a position having management
authority within the firm and such person caused the firm to engage in a prohibited practice. 297
With regards to penalties, any person convicted of this crime is punishable by a fine not
exceeding 500,000 South African Money to imprisonment for a period not exceeding 10 years,
or to both a fine and such imprisonment.298

3.4.2. Remedies for victims of Merger.

A) Administrative remedies

Competition tribunal may order a party to the merger to sell any shares, interest or other assets it
has acquired pursuant to the merger; Or declare void any provision of an agreement to which the
merger was subject if they failed to make notification to the competition authorities while the
law requires notification.299

Apart from this, competition authority can also impose administrative fee that may not exceed 10
per cent of the firm's annual turnover in the Republic and its exports from the Republic during
the firm's preceding financial year, if the parties to a merger have failed to give notice of the
merger as required by the law, proceeded to implement the merger in contravention of a decision
by the Competition Commission or Competition Tribunal to prohibit that merger and proceeded
to implement the merger in a manner contrary to a condition for the approval of that merger
imposed by the Competition Commission or competition tribunal.300

B) Civil remedies

The current competition act no.89/1998 of South Africa is silent with regards to civil claim by
injured private parties because of merger conducts. Thus private party can claim damages arise
out of merger under South Africa’s tort law.
297
Ibid, Art.73 (1)
298
Ibid, Art. 74 (a)
299
Ibid, Art.60 (1) (a) and (b)
300
Ibid, Art.59 (d) and (2)

55
 C) Criminal remedies

South Africa’s competition act no. 89/1998 doesn’t declared merger conduct as a crime.

3.4.3. Remedies of victims of unfair competition

South African competition law no. 89/1998, doesn’t cover unfair competition. It is not
considered unfair competition as anticompetitive conducts. However, some acts of unfair
competition is included prohibited act under chapter two Part F and G of South African
consumer protection Act no.68/2008. Under this law, there are administrative, civil and criminal
remedies for consumers victimized from act of unfair competition. The specific consumers
remedies of unfair competition included under South African consumer protection act no.
68/2008 is addressed below.

A) Administrative remedies

In South Africa, a claim for administrative measures can be brought either before Tribunal or
before courts of law.301 Pursuant to Article of South African consumer protection act no.68/1998,
Tribunal is National Consumer Tribunal established by section 26 of South Africa’s National
Credit Act. Thus if the allegation is true, the court or Tribunal can order interim relief which
prevent serious, irreparable damage to that person or which prevent the purposes of consumer
protection Act.302

In relation to administrative fee imposed against act of unfair competition, Tribunals are
empowered to impose administrative fines in case of prohibited or required conducts are
committed.303 Acts of unfair competitions are prohibited conducts as it is inferred from chapter
two part F and Part G of consumer protection Act no.68/1998 in South Africa. Thus Tribunal can
impose administrative fee not exceed 10% of the respondent’s annual turnover during the
preceding financial year or 1,000,000 South African Rand against unfair competition act
(prohibited or required conduct as per the term of the law).304

B) Civil remedies

301
South African consumer protection Act,1998, Act no.68 Article 1
302
Ibid, Article 114 (a) and (b)
303
Ibid, Article 112(1)
304
Ibid, Article, 112(2) (a) and (b)

56
In South Africa, damage claims consumers before the civil court brought, if two pre-
requirements are fulfilled. (1) The victim is not consented to settle the case through consent order
and (2) the Tribunal certify the conduct constituting the basis for the action has been found to be
a prohibited or required conduct in terms of this Act. 305 Therefore as soon as these two
requirements under the law exist, consumers can brought damage claims before courts.

In south Africa, as it is inferred from Article 77 and 78 of consumer protection act collective
action is allowed in certain circumstances. An accredited consumer protection group may
commence or undertake any act to protect the interests of a consumer individually, or of
consumers collectively, in any matter or before any forum contemplated by consumer protection
act and intervene in any matter before any forum contemplated in this Act, if the interests of
consumers represented by that group are not otherwise adequately represented in that forum.306

C) Criminal remedies

Acts of unfair competition is not declared as a crime under South African competition act
no.89/1998 and consumer protection act no.68/1998.

3.4.4. Institutional framework for adjudicating anticompetitive conduct in South Africa

In South Africa there are different organs which involved in adjudicating of anticompetitive
conducts. The research will going to address types of organizations involved in adjudication of
anticompetitive conducts and there specific roles in litigation of anticompetitive conducts case.

A) Competition Commission

Competition commission is established by the law as independent and impartial organ which has
jurisdiction throughout the Republic.307 The main function of competition commission is
investigate and evaluate alleged contraventions of anticompetitive conducts and refer matters to

305
Ibid, Article, 115(2) (a) and (b)
306
Ibid, Article 78
307
Ibid, Art. 19 and 20

57
the Competition Tribunal when it established anticompetitive conducts and appear before the
competition Tribunal for litigation.308

The Commission is grouped in five operating divisions: Mergers and Acquisitions (“M&A”);
Enforcement and Exemptions Divisions (“E&E”); Policy and Research Division; Compliance
Division; and Legal Division.309

The main function of Merger and Acquisition Division is investigating the impact of mergers and
acquisitions on competition.310The function of Enforcement and Exemption Division is
investigating and evaluating alleged restrictive practices and applications for exemptions. 311 It is
further required to negotiate and conclude consent orders under this Division.312The Policy and
Research Division is made up of economists who assist with economic evaluations and drafting
policy documents relating to the implementation of the Act. 313The Compliance Division of the
Commission is dedicated to assisting businesses and stakeholders with compliance with the Act
through education programs, publications and the media.314Lastly, the Legal Division is tasked
with reviewing and refining the law while providing legal support on cases and assisting in
litigation of matters.315

B) Competition Tribunal

The Commission Tribunal is the first-instance decision-maker about larger mergers and
complaints about restrictive practices and abuse of dominance.316 It also adjudicates appeals from
Commission decisions about smaller mergers and exemptions.317
308
Ibid, Art.21 (1) (c) and (g)
309
Kristin Elizabeth Lewis (2017), Public versus Private enforcement of South African competition law (Submitted in
fulfilment of the requirements for the degree of LLM in Mercantile Law, University of Pretoria) p, 17
310
Ibid
311
Ibid, p, 18
312
Ibid
313
Ibid
314
Ibid
315
Ibid
316
OECD (2003), Competition law and policy in South Africa <available at>
317
Ibid

58
 C) Competition Appeal Court

The competition appeal court may review any decision of the Competition Tribunal; Or consider
an appeal arising from the Competition Tribunal in respect of-any of its final decisions other than
a consent order or any of its interim or interlocutory decisions that may, in terms of this Act, be
taken on appeal.318 It may also give any judgment or make any order, including an order to-
confirm, amend or set aside a decision or order of the Competition Tribunal; Or remit a matter to
the Competition Tribunal for a further hearing on any appropriate terms319.

D) Court

As it is inferred from Art. 65(6) of South African competition act no. 89/1998, South Africa’s
regular court have a jurisdiction to entertain a claim for damage arise out of anticompetitive
conducts.

Apart from this, in relation to consumer protection South Africa’s regular court may order a
supplier to alter or discontinue any conduct that is inconsistent with consumer protection Act;
make any order specifically contemplated in this Act; and award damages against a supplier for
collective injury to all or a class of consumers generally, to be paid on any terms or conditions
that the court considers just and equitable and suitable to achieve the purposes of this Act.320

E) National Consumer Commission

National consumer commission is an organ established by South African consumer protection act
no.68/1998.321 Among others, National consumer commission is responsible to investigating and
evaluating alleged prohibited conduct and offences; referring to the Competition Commission
any concerns regarding market share, anti-competitive behavior or conduct that may be
prohibited in terms of the Competition Act, 1998 (Act No. 89 of 1998);referring matters to the
Tribunal, and appearing before the Tribunal, as permitted or required by this Act; and referring
alleged offences in terms of this Act to the National Prosecuting Authority.322

F) National Consumer Tribunal

318
South African Competition Act, supra note 302 Art. 37 (1) (a) and (b)
319
Ibid, Art. 37 (2) (a) and (b)
320
Republic of South Africa Consumer Protection Act, no.68/2008,Aticle 76(1) (a), (b) and (c)
321
Ibid, Article 85
322
Ibid, Article 99 (d),(g), (h) and (i)

59
National consumer Tribunal is established by National Credit Act no.34/2005 of South Africa. 323
It is authorized to impose administrative fines in respect of prohibited conduct or required
conduct as per Article 112, interim measures as per Article 114 and certifying whether the
conduct constituting the basis for the action has been found to be a prohibited or required
conduct as per Article 115 of consumer protection act no.68/1998.

3.4.5. South African Legal framework governing remedies of cross-border anticompetitive

conduct

As it is understood from reading of Article 3(1) of South African Competition Act no. 89/1998,
the application scope of its competition law is not only on transaction with in the Republic but
also Transaction outside Republic which have effect within Republic.

In addition to this, as it is understood from reading of Article 8 of South African consumer

protection Act no.68/1998, the scope of application of consumer protection law, is not only on
suppliers reside in the country but also on suppliers reside outside the Republic.

As some research shows South Africa is being affected by international mergers, cartels,
dominant positions and other enforcement cases.324South Africa in order to solve the problem
related with obtaining remedies of cross-border anticompetitive conducts signed multilateral
agreements like COMESA, SADC and EAC.325

Chapter –Four

4. Remedies for anticompetitive conducts under Ethiopian competition and

consumer protection law

In Ethiopia, pursuant to Art. 37(1) of FDRE constitution, the right to remedy is constitutional
right. Article 37 (1) states that:
323
Republic of South Africa, National Credit Act, 2005,no.34 Government Gazetta, Article 26
324
Tradecom Facility, cross-border issues and cases: overlap between SADC, COMESA and EAC and possible
implications for Specific enforcement case and SADC/COMESA cooperation in the future p,4-5 <available at>
https://www.sadc.int/guides/ III-7 cross border accessed on August 20, 2019.
325
Ibid, p,4-5

60
 ‘Everyone has the right to bring a justiciable matter to and to obtain a
decision or judgment by a court of law or any other competent body with
judicial power’

Ethiopian current Trade competition and consumer protection proclamation no. 813/2014 also
includes different types of remedies for victims of anticompetitive conducts as other jurisdictions
competition law. Since this proclamation includes provisions which protect both market
competition and consumer, it includes remedies of both injured competitors and consumers arise
out of anticompetitive conducts. The focus of this paper is only remedies of victims of
anticompetitive conducts under TCCP proclamation no. 813/2014.

Claims of damages of the loss arise out of non-competition wrongs covered under TCCP
proclamation no.813/2104, which could brought by consumers are out of the scope of this paper.
Under this section the researcher tries to address available remedies for victims of different types
of anticompetitive conducts under Ethiopian competition and consumer law.

4.1. Remedies for victims of restrictive anticompetitive agreements

In Ethiopia, the remedies of victims of horizontal agreements and vertical agreements are not
distinguished. Vertical and horizontal agreements have the same effect under Ethiopian trade
competition and consumer protection proclamation (here after known as TCCP) no. 813/2014.
Under this law, different administrative measure, administrative penalty and criminal remedies
for victims of restrictive agreements are available.

4.1.1. Administrative remedies

When there is commission of restrictive anticompetitive agreements which affect consumers or

competitors, Ethiopian competition law affords administrative remedies for victims of restrictive
agreements under TCCP proclamation no.813/2014. The adjudicative bench of Ethiopian
competition authority is empowered to take administrative measures against anticompetitive
conducts.326 Administrative measures that could be taken by Ethiopian Trade competition and
consumer protection authority (TCCPA) are stipulated under Article 32 (2) of TCCP
no.813/2014. Article 32 (2) of TCCP stipulates:

326
Ethiopian trade competition and consumer protection proclamation no.813/2014 Article 32 (1) (a)

61
 2/ the administrative measures to be taken pursuant to sub-article (1) (a) of this Article may
include ordering:

(a) The discontinuation of the act pronounced unfair;

(b) The taking of any other appropriate measure that enables to reinstate the victims
competitive position;
(c) The suspension or revocation of the business license of the offender.

As it is understood from this provision of law, these measures are not only imposed up on
commission of restrictive anticompetitive agreements but also imposed up on commission of
other anticompetitive conducts.

As it is inferred from Article 32 (2) of TCCP stated above, where there is commission of an act
of anticompetitive conducts adjudicative bench of authority is empowered to impose either
behavioral remedies as sub-article 2(a) of Article 32 or structural remedies as sub-article 2(c) or
a combination of both structural and behavioral remedies or even it can impose other appropriate
measure it thinks useful to reinstate the victims competitive position as per sub-article 2 (b).
Because the provision simply lists illustratively administrative measures that could be imposed
by the authority against restrictive anticompetitive agreements.

As it is discussed under chapter two of this paper above, in most cases appropriate remedies of
restrictive anticompetitive agreements are behavioral remedies. From experience of other
jurisdictions discussed above, US, South Korea and South Africa opts imposing behavioral
remedies against restrictive anticompetitive agreements. While Brazil competition authority can
impose structural remedies individually or in cumulative with behavioral remedies to cease
detrimental effects of the conducts.

In our case, the law simply lists administrative measures that could be imposed by the authority.
It is discretionary power of the authority to impose the appropriate administrative measure.
Moreover the law authorizes the authority to impose any other appropriate measures (other than
the one stated under the law) that enable to reinstate the victims competitive position against
restrictive anticompetitive agreements. Thus it could be argued that, administrative measures that
could be imposed by TCCPA according to Ethiopian competition law Article 32 (2) of
proclamation no.813/2014 is not predetermined. This kind of remedial clause may not deter

62
potential violators in the future. Since deterrence is among one objective of remedies of
anticompetitive conducts, the writer believe that remedies are effective if it is covered by the law
in a clear manner, too specific and make narrow the authority’s discretionary power in assessing
and determining remedies as it is seen from experiences of US, South Korea and South Africa
discussed above.

Apart from these measures, any business person committed restrictive agreements shall be
punished by administrative penalty up to 10% of his annual turnover under Ethiopian
competition law.327 When one analyses administrative penalty (fee) for victims of
anticompetitive agreements included under Ethiopian competition law with other jurisdictions
administrative fee, there seems a gap. In our case it says that administrative penalty is up to 10%
of business person’s annual turnover. However, as other jurisdiction like South Korea, it is not
included other mechanism of calculations of administrative penalty where it is difficult to
calculate annual turnovers of business persons, as some business person may have no annual
turnover. In South Korea, Where it is difficult to compute the annual turnover, administrative fee
may be imposed up to but not exceeding one billion Won.

Apart from this gap in relation to administrative fee for restrictive anticompetitive agreements,
the current Ethiopian competition law is silent with regards to allocation (redirection) of
administrative fee collected from business person committed anticompetitive agreements.
Honestly speaking it is difficult to say that administrative penalty is a remedy for victims of
anticompetitive agreements in Ethiopian context. In some jurisdiction there is a mechanism set
by the law to ensure benefit of competitors and consumers from administrative fee collected
from the violators. For instances, as it is discussed above in Brazil Ministry of justice collects the
fine imposed as penalty and redirected to Brazilian society by means of actions that seek to
repair damage to the environment, consumers, assets and rights of an artistic, aesthetic,
historical, tourism, landscape and economic nature, and other diffuse and collective interests.

As Ato Ashenafi Getinet head of investigation and institution of action division of Ethiopian
competition authority told me, in this year we have collected 57,000 birr from administrative fee
and transferred to government revenue account. It is small number of money collected. There is

327
Ibid, Article 42 (2)

63
no framework in which administrative penalty is redirected to benefit the victims of
anticompetitive conducts in Ethiopia.

Ato Ashenafi Getinet also told me that, still there is no regulation or directives enacted in
Ethiopia to enforce the proclamation no.813/2014. For instance, the proclamation stipulates
percentage of administrative fee to be imposed by adjudicative bench. There is no specific rules
in which this percentage of administrative fee is determined by adjudicative bench of the
authority.

As Ato Ashenafi Getinet and Ato Kuchitu Gebramariam (authority’s appellate tribunal judge)
told me that, starting from its establishment an authority never able to make punishable
anticompetitive agreements claims before TCCPA. According to Ato Ashenafi this is due to
TCCPA’s capacity to detect anticompetitive agreements are insufficient, we are not supported by
technologies as this is connected with economic development of the country. For instance the
authority instituted action against Ethiopian steel profiling and building plc, kombolcha metal
production plc, Ethiopian steel plc, Alem Metal production plc, Bazato industry and trading plc
and Worksew Legase Eshete metal engineering plc jointly by forming cartels under file no.00085
on date 02/12/2010. However the authority failed to win the case because of its inability to proof
the alleged anticompetitive agreements committed by business persons through evidence.

Moreover other jurisdictions, used leniency program to detect anticompetitive conducts like
cartels. However as Ato Ashenafi Getinet told the researcher that the leniency program under the
proclamation is not supported by specific regulation and directives. Because of lack specific
guidelines, the authority is not working on leniency program.

In sum, it could be argued that because of these gaps, in Ethiopia there are probabilities of
business persons committing anticompetitive agreements are not to be liable by the competition
authority. In such a case a remedial right of victims of anticompetitive agreements could be at
stake in Ethiopia.

4.1.2. Criminal remedy

With regards to criminal remedies against restrictive anticompetitive agreements, Ethiopian

competition law Article 43 (6) of TCCP proclamation no.813/2014 declares any act of business
person or persons other than business person which violate the proclamation as a crime and

64
punishable with a fine birr 5,000 to birr 50,000 and with simple imprisonment. Article 43 (6)
stipulates:

6) Any business person or any person other than a business person who violates the
provisions of this proclamation other than those provided from sub-article (1) to (5) of
this article or the provisions of regulations, directives or public notice issued to
implement this proclamation shall be punished with fine from birr 5,00 to birr 50,000 and
with simple imprisonment.

As it is understood from Article 7 (1) and (2) of TCCP proclamation no. 813/2014, any business
person is prohibited from participating in any restrictive anticompetitive agreements which limit
trade competition. If they violate this provision of law they are criminally liable pursuant to
Article 43(6) stated above. Ethiopia also as most jurisdiction do opts to punish individual as well
as corporate which involved in anticompetitive conducts. This position is seems better to deter
individuals who manage business person from involving in anticompetitive conducts.

4.1.3. Civil remedies

Ethiopian competition law no.813/2014 is silent about the right to claim damage by private
victims against anticompetitive agreements. Ethiopian competition authority is empowered to
order payment of compensation in accordance with the relevant laws to business persons
victimized by acts of unfair competition committed in violation of the provisions of part two of
TCCP proclamation no.813/2014. 328
As it is understood from this provision, TCCPA is
authorized to entertain civil case only in which victims are business persons from acts of unfair
competition only. Part two of TCCP is about prohibited types of anticompetitive conducts. As
per Art.32 (1) (b) of TCCP proclamation no.813/2014 competitors which are victimized by acts
of anticompetitive conducts stipulated under part two of TCCP except those victimized by act of
unfair competition are not recognized to claim compensation under TCCPA.

Thus in Ethiopia, claims of damage arise out of anticompetitive agreements either by competitors
or consumers can be brought under extra-contractual law before regular courts. That mean at
Federal levels they have to bring before Federal courts and at state levels they have to bring
before regional courts. This is because both at Federal and state levels judicial power is inherent

328
Ibid, Article 32 (1) (b)

65
power of courts as far as it is not taken specifically by laws.329 Article 2027(1) of the 1960
Ethiopian civil code states that irrespective of any undertaking on his part, a person shall be
liable for the damage he causes to another by an offence. A person commit an offence where he
infringes any specific and explicit provision of a law, decree or administrative regulation. 330As
per article 7(1) and (2) of TCCP proclamation no. 813/2014, committing anticompetitive
agreement which restrained a competition is prohibited and an injured person can claim damage
extra-contractually through Article 2027(1) and Article 2035(1) of the 1960 civil code of
Ethiopia.

Apart from this, Ethiopian competition authority is authorized to order payment of compensation
in accordance with the relevant laws to consumers victimized by transactions conducted in the
Addis Abeba or in the Dire Dewa city administration in violations of consumer protection
provisions stipulated under part three of proclamation no.813/2014.331As it is understood from
this provision, consumers victimized by acts of anticompetitive conducts stipulated under part
two of the proclamation cannot claim compensation from TCCPA. Thus consumers victimized
by acts of anticompetitive conducts stipulated under part two of TCCP proclamation
no.813/2014 can claim compensation under Art 2027(1) and 2035(1) of civil code of Ethiopia
through extra- contractual liability before regular courts both at Federal and state levels.

However it is not easy to private individual either competitors or consumers to proof commission
of anticompetitive conducts in general and anticompetitive agreements in particular in civil
litigation to win the case. Because anticompetitive conduct is done on secret and individual is not
accessed to information (access to evidence). To minimize such kind of problems related with
access to evidence by private individuals in civil litigation, some jurisdiction obliged competition
authority to transmit evidence on their hand to private individual as they can use it in civil
litigation. For instances, in South Korea, competition authority is in obligation to transmit
evidences related with the case to the court.332 This could be because of competition authority is
empowered to make investigation in relation to anticompetitive conducts and can be obtain
evidence which shows commission of anticompetitive conduct. In addition to this, through
leniency program competition authority can be accessed to information about alleged
329
Constitution of Federal Democratic Republic of Ethiopia, Negarit Gazetta, proclamation no.1 of 1994, Art. 79 (1)
330
civil code of the empire of Ethiopia, Negarit Gazetta proclamation no. 165 of 1960, Article 2035(1)
331
Trade competition and consumer protection proclamation, supra note 326, Article 32(1) (c)
332
Korean Monopoly regulation and fair trade act, Article 56-2

66
anticompetitive conducts as companies may expose anticompetitive agreements exist between
them to be benefitted from leniency program. Such kind of experience is seems better to protect
the interest of victims of anticompetitive conduct in general and anticompetitive agreement in
particular.

Other jurisdiction like Brazil allowed collective action in damage claim. Under this ground
different civil society and public prosecutor can represent consumers in claiming damage in
Brazil. In US general attorney can represent consumers in bringing civil suit to claim damages
arise out of anticompetitive conducts at state level. In South Africa it is responsibility of
competition authority to decide the commission or otherwise of anticompetitive practice. Private
individual brought civil suit based on this decision.

As the ultimate victims of anticompetitive conducts are consumers, representing such kind of
victims by civil society through collective action and by public authority is seems very important
to protect their remedial right as it may reduce cost of litigation, procedural unfairness, barriers
related with access to evidence and the like.

In Ethiopia there is no procedural rules which allows collective action under which consumers
can be represented by civil society in civil litigation to claim damages arise out of
anticompetitive conducts. Art. 38 of civil procedure recognizes a class action. A class action
constitutes a specific form of collective redress where actions are brought on behalf of a defined
class, but without all members of the class being identified to the Court. 333
This provision is not
seems to cover collective remedies in which actions are brought on behalf of not only defined
class but also un identified class of consumers. For instances if an act of a given cartel may has
an effect on the whole consumers of the country, it is not possible to claim compensation through
collective action under Art. 38 of civil procedure code as the claimant is not identified. The only
option consumers can be represented under federal government is through Article 6(4)(e) of
proclamation no.943/2016 General Attorney is empowered to institute civil litigation by
representing citizens who do not have financial capacity to institute civil action under federal
courts specially women, children, disabled and the elderly.

333
European Parliament, Collective redress in antitrust <available at>https://www.europarl.europa.eu accessed on
May 11, 2019

67
Mr. Andinet Haile under his masteral thesis also argued that TCCPA has no power to bring
collective action by representing consumer neither before Adjudicative Tribunal nor before the
Federal courts.334

4.2. Remedies of victims of Abuse of Dominance

In Ethiopia, like victims of anticompetitive agreements, victims of abuse of dominances are

entitled to obtain administrative, civil and criminal remedies. The specific remedies of victims of
abuse of dominance available under Ethiopian competition law is addressed below.

4.2.1. Administrative remedies

Competition authority can conduct an investigation on business persons where there is sufficient
ground to suspect based on its own information or information given to it by any person that an
offence has been committed anywhere entailing administrative measures or administrative
penalty.335 Up on result of this investigation it is empowered to impose administrative measures
and administrative penalty.336

In Ethiopia administrative measures to be imposed against act of abuse of dominances are; like
the discontinuation of the act pronounced unfair; taking of any other appropriate measure that
enables to reinstate the victims competitive position; the suspension or revocation of the business
license of the offender.337

Apart from this administrative measures TCCPA is empowered to impose administrative fee on
business person from 5% to 10% of his annual turnover where found in commission of abuse of
dominance.338 When administrative remedies against abuse of dominance under Ethiopian
competition law are analyzed in light of other jurisdictions administrative remedies against abuse
of dominance, like Brazil and South Africa both behavioral and structural remedies can be
imposed as administrative penalty against acts of abuse of dominance as it is understood from
cumulative reading of Article 32 (1) (a) and (2) and Article 42 (1) of TCCP proclamation
no.813/2014. As other jurisdiction like Brazil competition law, other persons other than business

334
Andinet Haile, Enforcement of consumer protection under the New legal regime of Ethiopia in the light of the EU
and US Laws and Practice: A comparative Analysis (Central European University )p, 113
335
Trade competition and consumer protection proclamation no.813/2014 Article 36 (1) (a)
336
Ibid, Article 37 (1) (a)
337
Ibid, Article, 32(1) (a) and (2)
338
Ibid, Art.42(1)

68
persons who directly or indirectly participated in act of abuse of dominance is liable and
punishable with fine from 10,000 to 100,000 birr. 339This person could be administrators or
workers of business persons. It could be argued that such kind of penalty is very important to
deter anticompetitive conducts. Because it is a natural person who leads business persons and
they can fear to lead business person into anticompetitive conduct if they are also personally
liable for their mismanagement.

However, as in the case of administrative remedies against anticompetitive agreements discussed

above, under Ethiopian competition law there are also seen some gaps in case of administrative
remedies against abuse of dominance too.

For instance the law doesn’t state how remedy is assessed against business person who have no
annual turnovers. Because sometimes new business person may commit anticompetitive conduct
and it is difficult to calculate its annual turnover. In addition to this there is no regulation or
directive enacted by Ethiopian government which could be used by the authority to assess the
penalty determined under the proclamation. The proclamation simply says that the authority can
impose administrative fee from 5% to 10%. It needs specific guidelines to determine exact fee to
ensure transparency and predictability of authority’s decision. Thus it could be argued that,
administrative fee imposed by Ethiopian Competition authority is unpredictable and non-
transparent.

Apart from this, there is no clear framework under which victims of abuse of dominance is
benefitted from administrative fee collected from violators of the competition law as other
jurisdiction like Brazils discussed above under chapter three of this paper.

4.2.2. Criminal remedies

In Ethiopia, commission of anticompetitive agreements are crime and punishable with a fine
from 5,000 to birr 50,000 and with simple imprisonment. This can be inferred from Article 43
(6) of TCCP proclamation no.813/2104. As per this provision any business person or any person
other than business person who violates the provisions of the proclamation or the provisions of

339
Ibid, Art.42(5)

69
regulations, directives or public notices issued to implement the proclamation is criminally
liable.

4.2.3. Civil remedies

Ethiopian competition law is silent with regards to civil remedies of victims of abuse of
dominance. Like civil remedies of victims of anticompetitive agreements discussed above,
victims of abuse of dominance can claim damage under extra-contractual law. Thus a private
individuals injured by act of abuse of dominance can claim damage arise ought of this conduct
under extra-contractual liability law pursuant to Article 2027(1) and 2035(1) of the 1960 civil
code of Ethiopia.

The practical difficulty like access to evidence, cost of litigations and procedural unfairness that
could be faced by private individuals victimized by acts of anticompetitive agreements to
institute civil suits in claiming damages under extra-contractual law discussed above, could face
victims of abuse of dominances too.

4.3. Remedies for victims of Merger

In Ethiopia, like victims of other anticompetitive conducts, competition law affords different
types of administrative, civil and criminal remedies for victims of Merger. The specific types of
remedies for victims of merger under Ethiopian competition laws are addressed below.

4.3.1. Administrative remedies

Where there is commission of merger, Ethiopian competition authority is empowered to impose

different types of administrative measures and administrative penalty (fee). Administrative
measures that could be imposed on business persons which form mergers are like the
discontinuation of the act pronounced unfair; taking of any other appropriate measure that
enables to reinstate the victims competitive position; the suspension or revocation of the business
license of the offender.340

Apart from these administrative measures, TCCPA can impose administrative fee on business
person from 5% to 10% of his annual turnover where found in commission of merger by
violating regulation provisions of TCCP proclamation no.813/2104.341
340
Ibid, Article,32 (1) (a) and (2)
341
Ibid, Article 42 (4)

70
As it is understood from cumulative reading of Article 32 (1) (a) and (2) of TCCP proclamation
no.813/2014, TCCPA can impose either behavioral, structural or a combination of the two as
administrative remedies against business persons forming mergers. As it is discussed above
under chapter two and three of this paper above, though most of the time structural remedies are
preferred to behavioral remedies against merger, there is a case in which behavioral remedies or
a combination of the two is used as remedies of mergers.

For instance, in USA as it is discussed above there is policy guidelines used by merger division
to determine appropriate merger remedies. Under this policy guidelines, structural remedies are
preferred for horizontal mergers, while behavioral remedies are preferred for vertical mergers.

In South Korea, as it is discussed under chapter three above, there is guidelines used by
authorities to determine appropriate merger remedies. Under this guidelines structural remedies
are preferred to behavioral remedies for merger conducts.

In case of Ethiopia, there is no guidelines which specifically determine types of remedies which
are appropriate for horizontal and which are appropriate for vertical mergers. Specific remedy
rules are very important to create transparency and to predetermine remedies that could be
imposed by adjudicative bench. For instance, TCCPA adjudicative bench on merger case
between TCCPA (plaintiff) Vs. East Africa boat ling Share Company and Ambo Minerals water
Share Company (defendants) under file no.00072 gives the following decisions:

1. The defendants are ordered to stop unlawful merger or co-operation conducts.

2. The defendants are liable for act of merger conduct without notification to the authority
and punished by 5% of their annual turnover individually under Article 42 of TCCP
proclamation no. 813/2014.

With regards to authority’s order to stop act of unlawful merger, it seems appropriate as it could
preserve market competition. While imposing 5% of administrative fee, the authority doesn’t
specify any reason why it opts initial penalty. The law puts administrative fees from 5% to 10%
of business person’s annual turnover under Article 42 (4) of TCCP. Since there is no guideline to
implement the proclamation it is discretionary power of an authority to impose administrative fee
between 5% and 10% of business person’s annual turnover. This kind of decisions may lack
transparency and difficult to predetermine it.

71
 4.3.2. Civil remedies

Ethiopian competition law proclamation no.813/2014 is also silent with regards to civil remedies
of victims of merger like victims of anticompetitive agreements and abuse of dominance
discussed above. Like civil remedies of victims of anticompetitive agreements and abuse of
dominance, victims of merger can claim damage under extra-contractual law in Ethiopia. Thus a
private individuals either competitors or consumers injured by act of merger can claim damage
arise ought of this conduct under extra-contractual liability law pursuant to Article 2027(1) and
2035(1) of 1960 civil code of Ethiopia in regular court both at federal and state levels.

The practical difficult like access to evidence, cost of litigation and procedural unfairness by
private individuals to institute civil suits which could face victims of anticompetitive agreements
and abuse of dominance in claiming of damage under extra-contractual law discussed above
could face victims of merger too.

4.3.3. Criminal remedies

In Ethiopia, pursuant to Article 43(6) of TCCP proclamation no.813/2014 forming merger is

crime. Because under this provision it says that any bossiness person or any person other than
business person who violates the provisions of the proclamation or the provisions of regulations,
directives or public notices issued to implement the proclamation is criminally liable. Thus any
business person forms merger in contrary to the requirement of TCCP proclamation no.813/2014
is violating the law and it can be criminally liable under Ethiopian competition law.

4.4. Remedies for victims of unfair competition

4.4.1. Administrative remedies

In Ethiopia, competition authority is empowered to impose administrative measures and

administrative penalty up on commission of anticompetitive conducts included under part two of
TCCP no.813/2014.342Unfair competition is one types of anticompetitive conducts regulated
under part two of this proclamation.

342
Ibid, Article 32 (1) (a)

72
Administrative measures that could be imposed by Ethiopian competition authority up on
commission of anticompetitive conducts in general and unfair competition in particulars are:the
discontinuation of the act pronounced unfair; taking of any other appropriate measure that
enables to reinstate the victims competitive position; the suspension or revocation of the business
license of the offender.343

In addition to this administrative measures, Ethiopian competition authority is empowered to

impose administrative fee up on commission of unfair competition by business persons. This can
be inferred from Article 42 (3) of TCCP pro. No.813/2014. Article 42 (3) states:

3/ any business person who violates the provisions of Article 8 of this proclamation shall
be punished with a fine from 5% up to 10% of his annual turnover.

Article 8 of TCCP proclamation no. 813/2014 is about prohibition of unfair competition that
adversely affects economic interest of competitors and it is also about listing types of acts of
unfair competitions.

4.4.2. Civil remedies

In Ethiopia, TCCP proclamation no. 813/2014 affords civil remedy for victims of unfair
competition under Article 32 (1) (b). The power to entertain damage arise out of unfair
competition is given to TCCPA. Article 32(1)(b) stipulates that:

1/ the adjudicative benches of the Authority shall have judicial power:

b) to order payment of compensation in accordance with the relevant laws business

person victimized by acts of unfair compensation committed in violation of the
provisions of part two of this proclamation.

As it is inferred from Article 47 (2) of TCCP proclamation no. 813/2014, the other relevant laws
which is not inconsistent with the proclamation can be applicable. The relevant laws which could
be applicable for damage claim arise out of unfair competition is Article 132-134 of Ethiopian
commercial code and Article 2120 and 2122 of Ethiopian civil code. Article 134 of Ethiopian
commercial code stipulates types of civil remedies to be imposed against acts of unfair
competitions. Article 134 stipulates that:

343
Ibid, Article 32(2)

73
 Art. 134. - Effect of unfair competition.

(1) The court may, in cases of unfair competition:

(a) Order that damages be paid.by the unfair competitor; and

(b) Make such orders as are necessary to put an end to the unfair competition.

(2) The court may in particular:

(a) Order the publication, at the costs of the unfair competitor, of notices designed to
remove the effect of the misleading, acts or statements of the unfair competitor, in
accordance with Art. 2120 of the Civil Code;

(b) Order the unfair competitor to cease his unlawful acts in accordance with Art. 2122 of
the civil Code.

Pursuant to this provision of Ethiopian commercial code, TCCPA can impose damage and
corrective publicity of the wrong done or injunctive order as a civil remedies for victims of
unfair competition.

4.4.3. Criminal remedies

Under revised Ethiopian criminal codes of 2005, from Article 719- 721 declared acts of unfair
competition as crime. Article 719 stipulates that:

Whoever intentionally commits against another an abuse of economic competition by

means of direct or any other process contrary to the rules of good faith in business, in
particular:

(a) by discrediting another, his goods or dealings, his activities or business or by making
untrue or false statements as to his own goods, dealings, activities or business in order to
derive a benefit therefrom against his competitors; or

(b) by taking measures such as to create confusion with the goods, dealings or products or
with the activities or business of another; or

(c) by using inaccurate or false styles, distinctive signs, marks or professional titles in
order to induce a belief as to his particular status or capacity; or

74
 (d) by granting or offering undue benefits to the servants, agents or assistants of another,
in order to induce them to fail in their duties or obligations in their work or to induce
them to discover or reveal any secret of manufacture, organization or working; or

(e) by revealing or taking advantage of such secrets obtained or revealed in any other
manner contrary to good faith, is punishable, upon complaint, with a fine of not less than
one thousand Birr, or simple imprisonment for not less than three months.

Article 720 and Article 721 of criminal code also criminalize such specific cases of unfair
competition as infringements of intellectual property rights.

4.5. Factors affecting the right to remedies of victims of anticompetitive

conducts in Ethiopia

In Ethiopia, there are different factors which are limiting the right to remedies of victims of
anticompetitive conducts in Ethiopia. The specific factors which are affecting the remedial rights
of victims of anticompetitive conducts in Ethiopia is going to be addressed below.

4.5.1. Factors related with legal framework

The first factors related with legal framework which could affect the right to remedies of victims
of anticompetitive conduct is lack of collective remedy in in civil suits in Ethiopia. Article 37(2)
of FDRE constitution seems as it could also recognizes collective remedies. Article 37(2) of
FDRE constitution stipulates that:

2/ the decision or judgment referred to under sub-article 1 above of this Article may also be
sought by:

a) Any association representing the collective or individual interest of its members or;
b) Any group or person who is a member of or represents a group with a similar
interests.

However Article 38 of Ethiopian civil procedure in contrary to the constitution recognizes only
civil suit by representation or class action which is a bit difference with collective action. In case
of collective action parties represented are large in number and their identities are not identified.
As it is discussed above, pursuant to Article 6(4)(e) of pro. No.943/2016 Federal General
attorney can institute civil claim by representing citizens who do not have financial capacity to

75
institute civil action under federal courts specially women, children, disabled and the elderly.
Even under this proclamation Federal General Attorney is not empowered to represent all
victimized consumers rather it represent Women’s, children, disabled and the elderly who do not
have financial capacity to institute civil action.

In most cases victims of anticompetitive conducts especially consumers bargaining power in

civil litigation with large companies are very low and this may cause procedural unfairness. In
addition to this sometimes cost of litigation could be higher than compensation sought by
victims.

In Ethiopia large numbers of consumers live in country side and they are living in poverty. Their
probability of bringing claims for damage arise out of anticompetitive conducts by business
persons are very law. Because their bargaining power against this business persons are very low.
In addition to this cost of litigation could be higher than compensation they are going to claim.
For instance, from 17 consumers the researcher make interviews in Sheshamane town all of them
are unwillingness to bring compensation claim against business person committing
anticompetitive conduct. Among reason they put for this is that they fear the cost they incur may
proceed damage sought, dalliance in the court to get decision and it is difficult to proof
commission of anticompetitive conducts as they commit in secret. They have eager to be
represented by civil society in civil litigation.

In other jurisdictions to minimize this problems they allowed collective actions. For instance, in
Brazil civil society and public prosecutors are recognized to bring damage claims by
representing consumers in civil litigation. In South Africa civil society is recognized to bring
damage claims by representing consumers in civil litigations.

The writer also believe that as special law and special authority is established in Ethiopia to
protect market competition and consumer, it is necessary to have special procedure to deal with
competition matter. Otherwise having special authority is seems meaningless. Thus it is very
important if there is a legal framework in Ethiopia which allows collective action for all types of
victimized consumers.

The other factors related with legal framework which limits the right to remedies of victims of
anticompetitive conducts in Ethiopia is related with lack of specific regulations and directives to

76
implement TCCP proclamation no.813/2014. In relation to this factor Ato Ashenafi Getinet in
TCCPA head of investigation and institution of action told me that, leniency program stipulated
under the proclamation is very important to detect anticompetitive conducts like cartels.
However the authority is not working on leniency program because there is no specific rules to
implement it. In addition to this he also told me that in relation to administrative measures
imposed on business persons committed anticompetitive conducts, there is no specific manuals
for determining administrative penalty. This could make decision of authority non-transparent
and unpredictable.

In addition to this, pursuant to Article 30 (10) of TCCP proclamation TCCPA is given a mandate
to establish procedure enable to resolve disputes arise between traders or consumers and traders
by mutual agreement and negotiation. Though the law requires TCCPA to establish kind of
procedural rules, they are unable to establish it as the writer proof through its observation to the
authority and interview to their staff.

In other jurisdiction like USA and Brazil there is specific rules to implement competition laws.
For instance, in US as it is discussed above under chapter three of this paper, there is sentencing
guidelines manuals which is used to assess sentences of anticompetitive offences and there is
also merger policy guidelines to determine appropriate merger remedies. Having such guideline
manuals save time and cost of the court to asses’ penalty.

4.5.2. Factors related with institutional framework

In Ethiopia there are factors related with institutional framework that limited the right to
remedies of victims of anticompetitive conducts. Ato Ashenafi Getinet head of investigation and
institution of action team of TCCPA believe that the authority is poorly designed structurally.
According to him this is due to both investigation and adjudicative bench is formed under one
organization. This may have two problems. Firstly, when the same organ conduct investigation
and institute of action and adjudicate the case it may create procedural unfairness remember that
both adjudicative bench and investigation and institution of action team is governed under one
authority by one director. Secondly, it is impartial for out lookers, when the same organ institute
action and decide on it.

77
In other jurisdiction like South Africa three independent organs are established separately to deal
with competition matter. That is there is independent competition commission established in
function of investigation and institution of action cases of anticompetitive conducts. There is also
established independent competition tribunal with mandate of adjudicating competition cases and
independent competition appeal court which review cases decided by competition tribunal.344

The other factor that could limit the right to remedies of victims of anticompetitive conducts in
relation to institutional framework in Ethiopia is the problems related with in accessibility of
TCCPA to the victims. As it is stated under Article 51(12) of FDRE constitution, the power to
regulate inter-state and foreign commerce is given to Federal government in Ethiopia. To
observe this power federal government enacts TCCP proclamation no. 813/2014. TCCPA is
established only in Addis Abeba and it has no any branch on regional state. Though under
Article 34 of TCCP proclamation no.813/2014, regional states are recognized to establish
consumer’s protection judicial and appellate tribunal no states are established this organ.

Since access to justice is constitutional right pursuant Article 37 of FDRE constitution, the
government is in obligation to observe this constitutional right. Authority’s Physical or
geographical accessibility to the victims could be essential requirements to observe this
constitutional right to remedies of victims of anticompetitive conducts. Ethiopia is
geographically very large state. Having an authority at the center to litigate anticompetitive
conducts from all the corner of the country may affect victim’s right to remedies in different
ways. Firstly, because of the distance between victim’s residence and the authority it may expose
victims to extra cost. Even it may discourage them from bringing the damage claim. From
among 20 competitors and 20 consumers the researcher made interviews in Sheshamane town, 3
competitors and 5 consumers believe that they have suffered a loss because of anticompetitive
conducts. None of them claim damages. All of consumer and competitor made interview
including those not suffered damages because of anticompetitive conducts living in Sheshamane,
Dodolla and Nagelle Arsi believe that TCCPA is not access to them. According to them it
requires extra costs and time to bring their case to TCCPA in Addis Abeba.

In relation to in accessibility of the authority, Ato Kuchitu Gebramariam TCCPA’s appellate

tribunal judge told me that from its establishment to now the authority doesn’t entertain the case

344
Cumulative reading of South African competition law supra note 289, Article 19-37

78
come out side of Addis Abeba. According to him, without existence of the case it is not
necessary to open branch of the authority in regional states. He also added that currently there
are cases from Dire Dewa and we are arranging to open adjudicative bench in Dire Dewa. The
researcher doesn’t agreed with Ato Kuchitu’s argument. Because currently in Ethiopia there are
different cities in Ethiopia having high commercial transactions. It is difficult to believe that
anticompetitive conducts are not committing it these cities. Having an opinions of competitor’s
and consumers stated above and from commercial transactions currently going in some capital
cities of regional states, the writer believe that the damage claim doesn’t come from this cities
are not because of non-existence of anticompetitive conducts rather because of absence of the
authority in these cities. Because they could be discouraged from bringing the case by
calculating cost of litigation arise out of geographical distance.

The other factors which limit the right to remedies of victims of anticompetitive conducts in
relation to institutional frameworks in Ethiopia, is authority’s impartiality independence issue
especially when entertaining cases involving ruling parties companies and government business
organizations as authority is accountable to Ministry of Trade. As it is inferred from Article 4(2)
of TCCP proclamation no.813/2014, as far as it is not expected by regulation to be enacted
government business organizations conducting trades are governed by TCCP proclamation
no.813/2014. Since there is no enacted regulation to enforce TCCP proclamation no.813/2014,
government business organizations conducting commercial transactions are governed by this
proclamation. Currently as discussed above Ethiopian ruling parties and government own many
companies in Ethiopia. In relation to impartiality of authority Ato Kuchitu also told me that,
authority’s independence in relation to entertaining the case is recognized by establishing
proclamations no. 813/2014. Thus keeping its impartiality in entertaining cases are related with
integrity of individual judges. If individual judge keeps its integrity, no question of impartiality is
raised. Otherwise it could be a problem. According to Ato Kuchitu, from its establishment to
now TCCPA doesn’t entertain cases involving companies of ruling parties. This is not because of
ruling party’s companies are not committing anticompetitive conducts. For instance Berhanu
Abegaz states that:

In the construction industry companies affiliated with member parties of the EPRDF,
MIDROC and the Sunshine Group and the Friendship Group (all of which are said to be

79
 close to the government) are the biggest players. The transport sector is to a large extent
in the hands of companies belonging to the ruling party or the state. Anti-competitive
behaviors of serious consideration include predatory behavior such as exclusive
distribution arrangements (e.g., soft drinks), improper dealing with related parties such as
the privileged relationships between government-owned or party-owned companies and
similarly-owned financial institutions, and unfair competition such as contraband imports
underselling legally imports and domestic goods.345

In addition to this Tessema Elias under his Master’s thesis also states that:

One of the legal experts in Addis Ababa University Faculty of Law has also said that the
most important cases at least for private sector representation in the authority in Ethiopia
is the fact that there is no clear demarcation between government and political party on
one hand, and the fact that political party (EPRDF) is a trader and dominating the private
sector.346

So that it could be argued that, under such situation the right to remedies of victims of
anticompetitive conducts committed by government companies are at stake in Ethiopia under
circumstances in which government and ruling party itself is trader, regulator and it also
adjudicator in its own case too. The writer believe that, the right to remedy of a person is secured
only under independent organ.

The opinions of competitors and consumers made interview in Sheshamane town also strength
TCCPA’s partiality. All of competitors and consumers made interview with the researcher in
Sheshamane town believe that, it is difficult TCCPA impartially or independently litigate cases
of anticompetitive conducts involving companies of ruling parties. They believe that currently in
Ethiopia trade is dominated by companies of ruling party, government business organizations
and companies those which have connection with ruling parties like MIDROK Ethiopia. They
also doubt that the major anticompetitive conducts could be committed by these companies as
they could not fear repressive measures could be taken by TCCPA.

345
Berhanu Abegaz, political parties in business,(working papers, the college of William and Marry University , April
2011) available at https://economics.wm.edu accessed on August 21, 2019
346
Tessema Elias Shale, A critical analysis of the enforcement framework of consumer protection in Ethiopia:
Challenges and Prospects (Masters Thesis, Addis Abeba University 2011) p,31<available
at>https://chilot.me/2013/02 accessed on August 21, 2019.

80
Ato Ashenafi Getinet also state that, ‘the Authority’s staff capacity to conduct its responsibility
is not sufficient. This is because there is no sufficient training given to TCCPA’s staff to build
the staff’s capacity. Authority is only supported by United Nations Conference on Trade and
Development (UNCTAD). According to Ashenafi Getinet, TCCPA is not equipped with modern
technological equipment to detect anticompetitive conducts committing in and outside Ethiopia.

4.5.3. Factors related with awareness of competition law and its

enforcement procedure by competitor and consumer

Article 30 (2) of TCCP proclamation no. 813/2014 impose duty to create awareness in relation to
provision of the proclamation and its implementation. The need of creating awareness of
competition law and its procedures of enforcement, could be because of the need to protect
market competition and consumers from acts of anticompetitive conducts. Moreover under sub-
article 6 of Art.30 this proclamation, the law impose mandate organize various education and
training forums and provide education and training in order to enhance the awareness of
consumers.

In relation to observing awareness creating responsibility by the TCCPA, Ato Ashenafi Getinet
also told me that from its establishment to now the authority has given training and education for
971,049 Peoples both at federal and state level to justice machineries like judge, prosecutors and
regional trade bureau staffs. He believe that when this number is seen in light of Ethiopian
population, it is not sufficient work by TCCPA. He also told me that to develop people’s
awareness about competition law and its implementation, the authority transmit Moot court
known as ‘Amsale chilot’ through ETV channel. The authority also transmit model decision
through news of different Medias. He believe that since large people of our country is not
covered by authority’s awareness creation, it could be a factor which limit the right to remedies
of victims of anticompetitive conducts.

From interviews made with Sheshamane competitors and consumers, all of them doesn’t get any
chance of taking awareness creation by TCCPA on competition law. All of competitors and
consumers in Sheshamane, Nagelle and Dodolla made interview believe that, their awareness of
their right and responsibility under competition law is low and also believe that lack of
awareness about their rights and duties under competition law have impact to obtain remedies
from losses arises out of anticompetitive conducts.

81
The writer shares the views of Ato Ashenafi Getinet. Because the law impose obligation to create
awareness about competition law may be because of competition law itself is new to Ethiopia
and majorities of our peoples are leaving in country side and are not accessed to the laws. Thus
the above works of TCCPA in relation to awareness creation is not satisfactory to observe
objective sought by legislator. Therefore, it could be argued that lack of awareness about
substantive rights under competition law and its implementation by victims of anticompetitive
conducts could limit their remedial rights.

4.5.4. Factors related with litigation of cross-border anticompetitive

conducts

Anticompetitive conducts committed outside Ethiopia may have adverse effects on Ethiopian
consumers and competitors in the country. In order to protect consumers and competitors from
cross-border anticompetitive conducts, organized legal and institutional framework is necessary.

Pursuant to Article 4(1) of proclamation no. 813/2014 its scope of application is to both
commercial activity and transaction of goods and service conducted in Ethiopia or having effect
within Federal Democratic Republic of Ethiopia. Thus Ethiopian competition law is also
applicable to cross-border anticompetitive conducts.

As it is discussed under chapter two above, cross-border cases pose particular challenges that can
undermine efforts to ensure accountability and access to remedy. The prevailing lack of clarity
across jurisdictions about the roles and responsibilities of different interested States in cross-
border cases create a significant risk that no action will be taken, leaving victims with no
prospect of remedy.

The Ethiopian legal system has been working without rules of conflicts. 347 There is no law to
guide judges to the effect. Ethiopian courts have been in trouble if they were confronted with a
case containing a foreign element for they could not avail themselves of any provision of law. 348
Federal draft private international law is still not adopted.

347
Areya Kebade and Sultan Kassim, Conflict of Laws teaching Material (2009, Ethiopian Justice and Legal System
Research Institute)p, 23
348
Ibid, p, 24

82
In Ethiopia, in relation to choice of jurisdiction, there are some insufficient provisions of judicial
jurisdiction scattered in different codes designed for specific purposes. 349 These provisions are
Arts. 208 and 237 of the Maritime Code that lay rules of judicial jurisdiction in respect of
carriage of goods and for action of damages incidental to collision, respectively. 350 Moreover,
Art. 647 of the Commercial Code captioned "Jurisdiction" concerning contracts of exclusively
internal carrier by air. All these provisions employ domicile to establish jurisdiction.351

However in relation to choices of law problems, as there is no statute to the effect, looking to
practice of courts as to the "approaches" employed, is the only alternative.352

To challenge problems related with litigation of cross-border anticompetitive conducts, other

jurisdictions like US, South Korea, Brazil and South Africa have signed bilateral and multilateral
treaty with different countries.

In case of Ethiopia, Ato Ashenafi Getinet told the researcher that Ethiopia doesn’t signed any
bilateral treaty in areas of competition law with other countries. According to him Ethiopia is
only member of COMESSA. However, COMESSA is not so much effective multilateral treaty.

According to Ato Ashenafi Getinet, TCCPA from its establishment to now it doesn’t entertain
cases of cross-border anticompetitive conducts. As it is understood from experiences of other
jurisdictions above, there is cross-border anticompetitive conducts like cartels which are
committing in international arena. Ethiopian cases also cannot be out of this. Lack of legal
framework like bilateral treaties could be a factor that limit TCCPA to make investigation and
entertaining cross-border anticompetitive conducts. Because unless TCCPA doesn’t cooperate
with other countries competition authorities, it is difficult to conduct investigation on
anticompetitive conducts committed in other countries. Therefore problems related with
litigation of cross-border anticompetitive conduct can be a factor that limit remedial rights of
victims of anticompetitive conducts.

4.6. Standard of assessment and objectives of compensation and

administrative Remedies under Ethiopian competition law

349
Ibid, p, 25
350
Ibid
351
Ibid
352
Ibid

83
 4.6.1. Standard of assessment and objectives of administrative
measures and administrative penalty under Ethiopian
competition law.

Ethiopian competition law as it is discussed above, stipulates types of administrative measures

that could be imposed by TCCPA. However the law doesn’t distinguish what types of
administrative measures could be imposed in different types of anticompetitive conducts, rather
there are similar administrative measures are included under competition law to all types of
anticompetitive conducts. Thus it is the mandate of TCCPA to determine appropriate
administrative measures imposed up on commission of anticompetitive conduct.

In case of administrative penalty that could be imposed against acts of anticompetitive conducts,
Ethiopian competition law stipulates as an interval of percentage annual turnover by business
persons. There is no specific guidelines in Ethiopia to assess administrative penalty. Art.38 (2) of
TCCP proclamation no.813/2014, factors that should authority consider while determining
administrative measure and administrative penalty. Article 38 (2) stipulates that:

2/ An adjudicative bench of the authority shall consider the following factors in determining
administrative penalty or administrative measures:

(a) The nature, duration, gravity and extent of the offence.

(b) The damage suffered as a result of the offence;
(c) The market circumstances in which commission of the offence took place;
(d) The benefit derived from the offence;
(e) The economic status of the offender;
(f) The degree to which the offender cooperated with the authority during the
investigation and
(g) The previous behavior and criminal records of the offender.

These factors stipulated under Article 38(2) above are general and it requires time and cost of the
authorities to proof. For instance proofing damage arise and profit derived may require time and
cost of the authority. Moreover having only these criteria’s in assessing administrative remedies
cannot ensure transparency and predetermination of authority’s decision. In US as it is discussed
under chapter three above, it included specific section under sentencing guidelines for the

84
calculation of fines for organizations convicted of criminal antitrust conduct. The court used this
manual to avoid the time and expense that would be required to determine the actual gain or loss.

With regards to objectives of the administrative measures and administrative penalty included
under Ethiopian competition law, there is no any provision which states their objective. Though
there is no any provision which state their objective, as it could be inferred from reading of
Article 31, 32 and 42 of TCCP proclamation the objective of administrative measure and
administrative penalties are correcting the wrongs arise because of anticompetitive conduct and
deterring the violators. Moreover, the factors included under Art.38 (2) which are considered by
adjudicative tribunal while determining appropriate administrative measures and penalties could
be a clue for objectives of administrative remedies of anticompetitive conducts under Ethiopian
competition law.

For instance administrative measures like ordering discontinuation of anticompetitive conduct

and to order measure which reinstate victim’s competitive position seems corrective measures as
they can correct the wrong done by anticompetitive conducts. On the other hand administrative
measure like ordering the suspension or revocation of the business license of the offender seems
deterring objective. This is because suspension or revocation of license is harsh measures which
make the violator out of the business and it is not seem the corrective one. In case of
administrative penalty as some staff of TCCPA believes, the writer also believe that
administrative penalty included under Ethiopian competition law is too harsh and it seems to
deter the commission of anticompetitive conducts.

4.6.2. Standard of assessment and objectives of compensation against

acts of anticompetitive conducts in Ethiopia

In Ethiopia, damage arise out of anticompetitive conduct is claimed under extra-contractual law.
In the case of extra-contractual damage, the principle of assessment of damage is the actual loss
sustained by the victims (injured parties) which may be nonetheless subject to mitigation where
there is contributory negligence on the part of the victims (injured parties).353

353
Ethiopian civil code Article 2090 and 2098

85
Therefore it could be argued that, punitive damage is not in place under Ethiopian extra-
contractual law. Even the current competition law proclamation no.813/2014 has not
incorporated the punitive damage.

4.7. Institutional framework for adjudication of anticompetitive conducts

in Ethiopia

As the concern of this paper is remedies for victims of anticompetitive conduct, the focus is
given to institution which participate in adjudication of anticompetitive conducts both at
Federal and regional states in Ethiopia.

4.7.1. Institutional framework at Federal level

A/ TCCPA’s Adjudicative Bench

In Ethiopia, TCCPA has adjudication power to impose administrative measure and

administrative penalty on any persons committing anticompetitive conducts, it can also order
payment of compensation to business persons and victimized from acts of unfair competition. It
can also order payment of compensation to consumers victimized by acts of unfair competition
and reside in Addis Abeba and Dire Dewa. 354 Thus it could be said that TCCPA’s adjudicative
tribunal is empowered to entertain civil claim and administrative measures and administrative
fines.

Before TCCPA’s adjudicative bench a claim for administrative measures and administrative
fines should be brought by the authorities legal officers while the claim for compensation for the
loss arise out of anticompetitive conducts can be brought by individuals or Federal General
attorneys.355

B/ TCCPA’s Appellate Tribunals

The TCCPA’s Appellate tribunals has the power to hear and decides on appeals against decision
of the authority to prohibit and revoke merger approvals and to ban commercial advertisements

354
Trade competition and consumer protection proclamation , supra note 326, Art.32 (1) (a-c)
355
See Article 38 of Ethiopian civil procedure code. See also Article 37 of Trade competition and consumer
protection proclamation no.813/2014.

86
and decisions of adjudicative bench of the authority. 356 Up on examining an appeal submitted to
it, it can confirm, reverse or vary the decision or remand the case with necessary instructions.357

C/ Federal Courts

Pursuant to article 79(1) of the FDRE constitution unless it has been taken by special laws, the
inherent judicial power is vested to courts in Ethiopia. In relation to adjudication of civil claim
from acts of anticompetitive conducts, TCCPA is empowered only to entertain claim of
compensation by business persons and consumers arise out of unfair competitions.

Therefore civil claims by competitors and consumers arise out of anticompetitive conducts other
than acts of unfair competition should have to bring before Federal courts. In addition to this
civil claims, criminal matters related with acts of anticompetitive conducts also entertained by
Federal courts as it is not specifically given to the authority by laws. Pursuant to Article 37(1) (b)
of TCCP proclamation no.813/2014, institution of action to impose criminal penalty is brought
by the TCCPA’s prosecution. However currently the prosecution power of TCCPA is transferred
to the newly established Federal General Attorney.358

Federal court (Federal Supreme court) is given the power to see the case seen by TCCPA
Appellate tribunal in its appellate jurisdiction through appeal only concerning mistake on the
question of law.359

4.7.2. Institutional framework at State level

A/ TCCPA’s Adjudicative bench

TCCP proclamation no.813/2014 is applicable in commercial activity or transaction in goods and

service carrying out in the whole country and transaction outside the country which have effect
with in Ethiopia.360 Thus TCCPA’s adjudicative bench has jurisdiction to entertain and impose
administrative measures and administrative penalty on acts of anticompetitive conducts
committed in regional states too. In relation to claims of damage arise out of the losses
committed by anticompetitive conducts in regional states, TCCPA’s adjudicative bench has
356
Ibid, Art. 33(2) (a) and (b)
357
Ibid, Art. 33(3)
358
A proclamation for the establishment of the Attorney General of the Federal Democratic Republic of Ethiopia,
2016, Fed. Neg. Gaz. proclamation no.943, Article 22(6)
359
Trade competition and consumer protection proclamation Supra note 326, Article 39(1) and (2)
360
Ibid, Art.4(1)

87
jurisdiction where victims are competitors (business persons) and suffered a loss by acts of unfair
competition.361

In Ethiopia, TCCPA has no branch in regional state. It has head office in Addis Abeba and
entertain the case from the whole country. 362As it is discussed above under chapter three above,
in other jurisdictions like US and South Korea, competition authority is not limited only at the
center rather it also open branches at regional levels too. This is seems sound while it is seen in
light of physical accessibility of the competition authority to the victims of anticompetitive
conducts.

B/ TCCPA’s Appellate Tribunal

As in the cases brought in Federal level, the TCCPA’s Appellate tribunals has the power to hear
and decides on appeals against decision of the authority to prohibit and revoke merger approvals
and to ban commercial advertisements and decisions of adjudicative bench of the authority.

C/ State Courts

Though TCCP proclamation under Article 34 recognizes the establishment of consumer’s

protection judicial organ and appellate tribunal, no regional state in Ethiopia established such
organ. Till the establishment of consumer protection judicial organ, state courts have jurisdiction
on claims of damage of loss arise out of anticompetitive conducts committed in the regional state
which is brought by consumers. Because pursuant to Article 79(1) of FDRE constitution, judicial
power is vested to courts unless it is given to other organ by laws.

In case of entertaining criminal case, as per Article 80(4) and (5) of FDRE constitution state
courts can entertain criminal cases through delegation.

5. Conclusion and Recommendations

5.1. Conclusions

361
Ibid, Art.
362
Ibid, Art.29

88
To ensure remedial rights of victims of anticompetitive conducts, different nations developed
special legal and institutional framework which govern competition law. In order to realize this
objective some nations established special procedural rules to be followed by special authority
established for enforcing competition law.

Starting from 2003, Ethiopia also established special legal and institutional framework which
governing trade competition. It amended competition law three times and come up with the
current competition law proclamation no.813/2014.

Administrative measures included under Article 32 of proclamation no.813/2014, are general.

That means, similar administrative measures for all types of anticompetitive conducts are
adopted. It is TCCPA’s discretionary power to opt the appropriate measure to be imposed. In the
same way, administrative penalty included under Article 42 of this proclamation is stated in
intervals of percentages. It is also discretionary power of TCCPA to opt appropriate
administrative penalty to be imposed. There is no regulation, directives and manuals for
assessment of penalty established to facilitate enforcement of the proclamation. This makes
authority’s decision non-transparent and non-predictable.

Proclamation no.813/2014 is silent with regards to allocation (redirection) of administrative fee

collected from the violators. Unless there is existences of framework in which victims of
anticompetitive conducts are benefitted directly or indirectly from the administrative fee
collected, it is difficult to consider administrative penalty as a remedy of victims of
anticompetitive conducts.

In Ethiopia, TCCPA has no sufficient capacity to detect restrictive anticompetitive agreements

mainly because of economic and technological under development of the country. No single case
of anticompetitive agreements punished by TCCPA’s adjudicative bench from its establishment
to now. This is due to TCCPA’s capacity to proof commission of anticompetitive agreements by
evidence is not sufficient. TCCPA is not using Leniency program a mechanism that could be
employed to detect anticompetitive agreements like cartel mainly because of lack of specific law
to enforce the program stated under the proclamation.

In Ethiopia, except damage claim arise out of losses of acts of unfair competition, the damage
claim out of the other anticompetitive conducts are brought under extra-contractual law.

89
However, claiming damage arise out losses of anticompetitive conducts under extra –contractual
law have its own limitations in Ethiopia. Firstly, it is difficult to private individuals to proof the
commission of anticompetitive conducts by evidence. This is because of in most cases
anticompetitive conducts are committed on secret and private individual is not accessed to
evidence. Secondly, under proclamation no.813/2014 TCCPA is not obliged to transmit evidence
they accessed through investigation to private individuals as they could use it in civil litigation.
Thirdly, except in cases of Women’s, children’s and disabled represented by General Attorneys
in damage claims, there is no procedural rules allows collective action to bring damage claims by
representing weak victims mainly consumers in Ethiopia.

Proclamation no.813/2014, is silent about the way of assessment of administrative penalty of

business persons who have no annual turnover for different reasons.in such a case it is difficult to
TCCPA’s adjudicative bench to assess administrative penalty. It may also a cause for
adjudicative bench’s decision non-transparent and an unpredictable.

Proclamation no.813/2014 poorly designed TCCPA structurally. This is because of it established

investigation directorate, institution of action (prosecution directorate before establishment of
Federal General Attorney) and adjudicative bench under one authority. All these three teams are
governed by one director. When one organ conduct investigation, institute action and adjudicate
it, it can create procedural unfairness. It is also not seems impartial for out lookers.

In Ethiopia, TCCPA is established at Addis Abeba and to give function to the victims from the
whole country. There is no branch of TCCPA at regional State. As Ethiopia is geographically
very large country, TCCPA is physically in accessible to the victims from regional states to bring
their case.

Proclamation no. 813/2014 established TCCPA which is accountable to Ministry of Trade. In

Ethiopia currently ruling party owns many companies. As TCCPA is accountable to executive
branch, its impartiality in entertaining cases involving ruling party’s companies fall into
question. This is because of in Ethiopia separating government and party work is difficult.
Moreover, from its establishment to now TCCPA doesn’t entertain even a single case which
involves companies of ruling party. This can strength the doubt in relation to its independence.

90
Though proclamation no. 813/2014 impose awareness creation responsibility on TCCPA, the
authority is not observing its mandate as expected as it is seen from the figure of population
taken awareness. As competition law is new to the country, the people needs awareness to
exercise their right properly. From interview made with competitors and consumers living in
Sheshamane, Dodola and Nagelle, it is understood that their awareness regarding rights and
duties included under competition law is low. Therefore lack of awareness about the competition
law is one factors which limit the right to remedies of victims of anticompetitive conduct.

Except COMESA, Ethiopia doesn’t signed bilateral and multilateral agreements in areas of trade
competition matter. Ethiopia till now doesn’t have full-fledged private international law. Federal
private international draft law is not adopted till now. Under this situation it is difficult to
manage cross-border anticompetitive conducts effectively. TCCPA from its establishment to
now do not entertain a single case of cross-border anticompetitive conducts. Thus this implies
that, the right to remedies of victims of anticompetitive conducts from cross-border cases are at
stake in Ethiopia.

5.2. Recommendations

Based on the findings of this paper, the writer would like to recommend the followings.

1. In order to make private law remedies effective to victims of anticompetitive conducts in

Ethiopia, there should be special procedural rules which allows collective action to bring
anticompetitive conducts affecting consumers; as collective action is not possible under
Art 38 of civil procedure code. This may facilitate as consumers who are unable to bring
compensation claim to be represented by civil society or public prosecutors in civil case.
In addition to this, TCCPA Should have to be obliged by the law to transmit evidence
related with anticompetitive conducts that it is accessed while conducting investigation to
private individuals as they can use it in civil litigation.
In Brazil, civil society and public prosecutors are authorized to bring damage claims arise
out of acts of anticompetitive conducts by representing consumers. In South Africa civil
society is authorized to bring collective action by representing consumers. In South
Korea, to mitigate the problems of access to evidence by private individuals, KFTC is
obliged to transmit evidence on their hand to private individuals as they can use it in civil
litigation.

91
 In Ethiopia, apart from representing women’s, children and disabled by Federal General
Attorney in damage claims, there should be legal framework which allow collective
actions in Ethiopia to protect the remedial rights of weak victims of anticompetitive
conducts mainly consumers. In addition to this TCCPA should have to be obliged by the
law to transmit the evidence on their hand to private individuals to mitigate problems
related to access to evidence by private individuals.
2. TCCPA is established as autonomous federal government organ legally pursuant to
Article 27(1) of proclamation no.813/2014. However, politically and financially it is not
independent as it is accountable to Ministry of Trade pursuant to Article 27(2). In country
in which ruling party is a trader, authority which is not politically and financially
independent cannot efficiently and effectively address the remedial rights of victims of
anticompetitive conducts.
In US, FTC is established as independent agency and its independence from political
motivated interference or influence gives it the flexibility to respond rapidly to complex
cases of abusive activities.
Therefore, in order to protect the right to remedies of victims of anticompetitive conducts
in effective and efficient manner, TCCPA should embrace not only administrative
autonomy but also financial and political autonomy from Ministry of Trade.
3. It is difficult to ensure constitutional right of access to justice by private persons without
physical accessibility of judicial organ to the victims. In Ethiopia, TCCPA physically
exist only in Addis Abeba and it has no branch in regional states. As Ethiopia is
geographically large state TCCPA is not physically accessible to most of the victims
reside in regional states.
Other jurisdictions like US and South Korea have established branches of competition
authority in regional states.
Therefore to make TCCPA physically accessible to the victims and to reduce cost of
litigation to the victims reside in regional states, it should establish its branch in regional
states. Even up to establishing its branch in regional states it should use technological
products like plasma which is in use by Oromia Supreme Court to mitigate problems
related with accessibility of the court.

92
4. Ethiopia should adopt its private international law on one hand and sign bilateral and
additional multilateral treaties in trade competition area with other states in order to
protect the remedial rights of victims of anticompetitive conducts from cross-border
anticompetitive conducts. As settling cross-border anticompetitive conducts raises issues
like jurisdiction, choices of laws and enforcements of foreign awards, it is difficult to
address such issues without private international law and treaties.
5. There should be extensive legal awareness to the consumers and competitors about
competition law and its procedural enforcement. Legal awareness is the foundation for
fighting injustice. The poor and other disadvantaged people cannot seek remedies for
injustice when they do not know what their rights and entitlements are under the law.
Thus to protect the right to remedies of consumers and competitors effectively and
efficiently, there should be extensive legal awareness regarding their substantive rights
and its procedural enforcement.
6. Specific laws like regulation, directive and manuals for assessment of administrative
penalty should have to be enacted to ensure effective enforcement of the proclamation.
For instance, enacting manual of sentencing can make authority’s decision transparent
and predictable. It can also save time and cost of adjudicative bench to assess
administrative penalty. Enacting specific law is also important to make program like
leniency functional.
7. The administrative penalty collected from the violators should be allocated to the way in
which victims of anticompetitive conducts are directly or indirectly benefitted from.
In Brazil administrative fee collected from the victims are redirected to Brazilian society
by means of actions that seek to repair damage to the environment, consumers, assets and
rights of an artistic, aesthetic, historical, tourism, landscape and economic nature, and
other diffuse and collective interests.
TCCPA should follow Brazil best practice to compensate weak victims of
anticompetitive conducts mainly consumers which are exploiting by anticompetitive
conducts in Ethiopia.
8. More works has to be done by the government to build capacity of TCCPA through
technological advancement, finance and improving man powers knowledge to regulate

93
 market competition in general and to detect anticompetitive conducts and redress
effective remedies to the victims in particular.

References

1. Laws
 Brazilian antitrust law, 2011, law no. 12,529/11 Year 5
 Civil Code of the Empire of Ethiopia of 1960, Negaret Gazetta,
ProclamationNo.165 of 1960, 19th year No.2
 Civil procedure code of the Empire of Ethiopia of 1965, Negarit Gazetta, Decree
No.52, Year 25 No.3

94
  Commercial code of the Empire of Ethiopia of 1960, Negarit Gazetta,
Proclamation No. 166, 19th year No.3
 Constitution of Federal Democratic Republic of Ethiopia of 1995, Negaret
Gazetta, proclamation No.1, Year 1 No.1
 Criminal code of Federal Democratic Republic of Ethiopia of 2005, Negarit
Gazetta, Proclamation No.414/2004
 Federal Democratic Republic of Ethiopia A Proclamation to provide for the
establishment of the Attorney General, 2016 proclamation no.943, Fed. Neg.
Gaz.Year 22 No.62
 Federal Democratic Republic of Ethiopian Trade practice and consumer
protection, 2010 proclamation no. 685. Fed.Neg. Gaz. Year 16, no.49.
 Federal Democratic Republic of Ethiopian Trade competition and consumer
protection, 2013, proclamation no.813, Fed. Neg. Gaz. Year 20, no. 28.
 Korean Monopoly regulation and fair trade act,2004, act no.7315
 Republic of South Africa's competition law,1998 no. 89, Government Gazetta
 Republic of South Africa Consumer Protection Act, no.68/2008, Government
Gazetta
 Republic of South Africa, National Credit Act, 2005,no.34 Government Gazetta
 Universal Declarations on Human Rights,
 United State Federal Trade Commission Act, 1914
 United State Sherman act, 1890
 United State Clayton act, 1914
 United States Sentencing commission Guidelines Manual, 2016,
2. Books
 Cristianne Zarzur and other (eds), overview of competition law in Brazil (Sao
Paulo, 2015)
 Mark Furse, Introduction to competition law, competition law of EU and UK
(Oxford University press, 2011)
 Massimo Motta, competition policy: theory and practice ( 2003)
 Richard Wish and David Bailey: Competition law (6th edition Oxford 2008).
 Xavier Vaves, competition policy in the EU (Oxford university press, 2009).

95
3. Journals
 Andinet Haile, Enforcement of consumer protection under the New legal regime
of Ethiopia in the light of the EU and US Laws and Practice: A comparative
Analysis (Central European University )
 Barry E. Hawk and , and Laraine L. Laud, Antitrust federalism in the US and
decentralization of competition law enforcement in the European Union: A
comparison (1996) 20 FILJ 19
 Dong Won Suh, Enforcement Direction of Competition Law (2005) 4 JKL 29
 Kristin Elizabeth Lewis (2017), Public versus Private enforcement of South
African competition law (Submitted in fulfilment of the requirements for the
degree of LLM in Mercantile Law, University of Pretoria).
 Per Hailstorm and etal, remedies in European antitrust law (2009) 76ALJ 46.
4. Working papers
 Alvin K. Klevorick and Alan O. Sykes (2007) United States Courts and the
optimal deterrence of International Cartels: A welfares perspectives on Empagran.
(Cowles foundation for research in economics, Yale University)
 Deborah A Garza Chair and etal, Antitrust modernization commission ,reports
and recommendation (2007)
 Harry First and etal (2012) Procedural and Institutional Norms in Antitrust
Enforcement: The U.S. System ( NELLCO Legal Scholarship Repository, New
York School of Law 2012)
 OECD (2018), Competition Law in Asia-Pacific: A Guide to Selected
Jurisdictions
5. Websites
 Antitrust modernization commission, report and recommendations (chapter III)
<available at> https://govinfo.library.unt.edu accessed on May 27, 2019
 Befekadu Hailu, 'inside the controversial EFFORT' Addis Standard (Addis Abeba,
January 16/2017) www.addisstandard.com/analysis-inside-controversial-effort
accessed on April 28, 2019.

96
 Berhanu Abegaz, political parties in business,(working papers, the college of
William and Marry University , April 2011) available at
https://economics.wm.edu accessed on August 21, 2019
 Daniel Blackburn, International Center for Trade Union Rights papers, Removing
Barriers to justice (2017) (Amsterdam, Stitching Onderzoek Multinational
Ondernemingen) available at https://www.business-humanrights.org accessed on
August 16, 2019.
 Eleanor M.Fox, US and EU competition law: a comparison ( Institute for
International Economics) <available at> https://piie.com accessed on May 28,
2019
 Hawang Lee, developments of competition law in Korea, (ERIA discussion paper,
November 2015) available at https://www.eria-DP-2015-78 accessed on July 9,
2019
 Human right council, reports of the United Nations High commissioner for
Human rights and reports of the office of the High commissioner and the
Secretory general (32nd session 10 May, 2016) <available at>
https://www.ohchr.org/business accessed on June 22, 2019.
 Husen Ahimed, Ethiopian Merger regulation (un published) <available at>
https://www.research.net accessed on May 15, 2019
 Ioanis Lions, competition law remedies in Europe (Hand book on European
competition law, August 2013) available at <https://www.coleurope.eu.tdf.event>
accessed on April 25, 2019.
 Jeremy West, remedies and sanctions in abuse of dominance case (2006) OECD
working paper available athttps://www.oecd.org.competition accessed on April
26, 2019.
 Jeremy West, remedies and sanctions in abuse of dominance case (2006) OECD
working paper available athttps://www.oecd.org.competition accessed on April
26, 2019.
 Organization of Economic cooperation and Development. Abuse of dominance
and Monopoly (1996) available at https://www.oecd/competition/abuse accessed
on May 15, 2019

97
 Organizations of Economic Cooperation and Development (2006), Remedies and
Sanction in Abuse of Dominance cases <available at>
https://www.oecd.org/abuse accessed on May 15, 2019
 Organization for economic co-operation and development, remedies in merger
cases (30, July 2012) <available at> https://www.oecd.org/daf/competition
accessed on July 4, 2019
 Organizations of Economic Cooperation and Development on competition law
and policy (1998), United States - The Role of Competition Policy in regulatory
reform <available at> https:www.oecd.org/regreform/sectors accessed on May
28, 2019
 OECD (2019), the divestiture of assets as the competition remedy: stocktaking of
the international experiences <available at>
www.oecd.org/daf/competition/devistiture-of-assets-as-a-competition--remedy.ht.
accessed on May 28, 2019
 OECD (2019), OECD Peer Reviews of Competition Law and Policy: Brazil
<available at. www.oecd.org/daf/competition/oecd-peer-reviews-of-competition-
law-and-policy-brazil-2019.htm accessed on July 11, 2019
 Organization of Economic cooperation and development (2011), remedies in
merger cases <available at > https://www.oecd.org-daf-competition-remedy
accessed on May 29, 2019.
 Robert Longley, Independent executive agencies of US Government <available
at>https:www.thoughtco.com/independence accessed on August 21, 2019.
 Statements of Edward D Cavanagh before Antitrust Modernization
Commission(July 28, 2005 Washington DC) available at
https://govinfo.library.unt.edu/amc accessed on June 12, 2019
 Tradecom Facility, cross-border issues and cases: overlap between SADC,
COMESA and EAC and possible implications for Specific enforcement case and
SADC/COMESA cooperation in the future <available at>
https://www.sadc.int/guides/ III-7 cross border accessed on August 20, 2019.
 Tessema Elias Shale, A critical analysis of the enforcement framework of
consumer protection in Ethiopia: Challenges and Prospects (Master’s Thesis,

98
 Addis Abeba University 2011) p,31<available at> https://chilot.me/2013/02
accessed on August 21, 2019.
 Tembinkosi Bonakele and Liberty Mncube, Designing Appropriate Remedies for
Competition Law Enforcement: The Pioneer Foods Settlement Agreement
<available at> https://www.compcom.co.za accessed on May 19, 2019
 United Nations Human Rights Office of The High Commissioner (UNHROHC),
Access to remedy for business-related human right abuses. <Available at>
http:www.ohchr.org/business accessed on August 16, 2019.
 United Nations conference on Trade and Development, Appropriate sanctions and
remedies (Geneva 8-12 November 2010) <available at >https://www.unctad.org
accessed on May 12, 2019
 U.S. Department of Justice and Federal Trade Commission (2017), antitrust
guidelines for international enforcement and cooperation <available at>
https://www.ftc.gov/public_statement accessed on June 14, 2019
 US Department of Justice Antitrust Division (2011), Antitrust Division policy
guide to Merger Remedies <available at> https:www.justice.gov accessed on May
29, 2019
6. Interviews
 Interview with Ato Suleiman Husen former Ethiopian Trade competition and
consumer protection Authority staff
July 02, 2019
 Interview with Ato Ashenafi Getinet Ethiopian Competition Authority’s
investigation and institution of action division head.
August 01/08/2019
 Interview with Ato Kuchitu Gebramariam, Ethiopian competition Authorities
adjudicative bench Appellate tribunal judge.
August 01/08/2019

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APPENDICES

Interview Guides Prepared for Trade competition and consumer protection Authority

Personal Detail of Respondent

Name of the Respondent (if he or she consented)_______________________

Position in the Authority ___________________________________

Type of the Study: A Master Thesis in Law (LL.M Thesis)

100
Title: Remedies for victims of anticompetitive conducts under competition and consumer law of
Ethiopia: A Comparative analysis

Objective of this Interview: To gather information so as to assess the roles and performances of
the authority in providing remedies for victims of anticompetitive conducts.

So, you are kindly requested to respond to the interviews as your information will be helpful for
effective accomplishment of the study and as it will be kept confidential and analyzed
anonymously unless you consented for the disclosure of your identity and personal views.

Thank you, in advance, for your co-operation

Guiding Questions:

1. Giving an awareness to the consumer and competitors about competition law and its
enforcement procedures are authorities mandate under competition law. Where and for
how much people authority has given education and training about competition law?
2. Does authority is conducting investigation on anticompetitive conducts on the market
regularly to protect market competition and consumer?

101
 3. If your answer under question under no. 2 is yes, is it at Federal, regional or in both
areas? Are your authority conduct investigation by its own initiation or up on complain
from the victims?
4. What challenges encounter an authority in enforcing competition law in the country?
5. What types of techniques employed by authority to detect anticompetitive conducts in the
market?
6. Since investigative and adjudication functions are established under one organization,
how is this two functions are separated practically?
7. How doe authority keeps its independence and impartiality especially when government
companies are a party to the litigation since authority is accountable to executive organ?
Is there any interference from the government? Is there any case in which government
companies are a party entertained by authority?
8. Does authority supported by professionals like economist while decide issues like
amounts of damage arise out of anticompetitive conducts?
9. How is authority working in settling cross-border anticompetitive conducts? Is there any
bilateral or multilateral agreements related with cross-border anticompetitive conduct
settlement?
10. How is authority working in coordination with federal and state attorney generals with
regards to criminal investigation and prosecution of anticompetitive conducts?
11. For what purpose does administrative fee collected from business persons redirected? Is
there any clear framework in which victims of anticompetitive conducts are benefitted
from collected administrative fee?

Interview Guides Prepared for consumers

Personal Detail of Respondent

Name of the Respondent (if he or she consented)_______________________

Position in the Authority ___________________________________

Type of the Study: A Master Thesis in Law (LL.M Thesis)

102
Title: Remedies for victims of anticompetitive conducts under competition and consumer law of
Ethiopia: A Comparative analysis

Objective of this Interview: To gather information so as to assess the roles and performances of
the authority in providing remedies for victims of anticompetitive conducts.

So, you are kindly requested to respond to the interviews as your information will be helpful for
effective accomplishment of the study and as it will be kept confidential and analyzed
anonymously unless you consented for the disclosure of your identity and personal views.

Thank you, in advance, for your co-operation

Guiding questions

1. Do you suffer any loss because of anticompetitive conducts?

2. Did you have brought damage claim before TCCPA or court?
3. Do you think that TCCPA is accessible to bring damage claim?
4. What could be a challenge to bring cases before TCCPA or court?

103
 5. Did you have gotten a chances of awareness creation by TCCPA on competition law and
its enforcement procedure?
6. How you can express your awareness of right and duty you have under competition law?
Low awareness _____________ medium awareness_________ High awareness-----

7. Do you think that TCCPA is independent organ in entertaining anticompetitive conducts?

Interview Guides Prepared for competitors

Personal Detail of Respondent

Name of the Respondent (if he or she consented)_______________________

Position in the Authority ___________________________________

104
Type of the Study: A Master Thesis in Law (LL.M Thesis)

Title: Remedies for victims of anticompetitive conducts under competition and consumer law of
Ethiopia: A Comparative analysis

Objective of this Interview: To gather information so as to assess the roles and performances of
the authority in providing remedies for victims of anticompetitive conducts.

So, you are kindly requested to respond to the interviews as your information will be helpful for
effective accomplishment of the study and as it will be kept confidential and analyzed
anonymously unless you consented for the disclosure of your identity and personal views.

Thank you, in advance, for your co-operation

Guiding questions

1. Do you think that there are anticompetitive conducts in market of Sheshamane town?
2. Do you suffered any loss because of anticompetitive conducts?
3. Did you brought compensation claim before TCCPA or court?

105
4. What do you think that it could be a challenge to bring case before TCCPA or court?
5. Do you think that TCCPA is independent in entertaining competition case?

106