BNP Paribas v Competition Commission

The Constitutional Court’s decision in the BNP Paribas / Competition Commission matter arose from allegations that several banks – initially 18 were identified – colluded to manipulate the USD/ZAR exchange rate from 2007 until at least September 2013. The case traversed the Tribunal, the Competition Appeal Court (CAC) and ultimately the Constitutional Court over a period of nearly a decade, largely on preliminary jurisdictional and pleading issues. For deal teams, the case is a useful reminder that competition-law risk in South African transactions may arise from conduct outside South Africa where that conduct is alleged to affect a South African market.

The jurisdictional anchor is section 3(1) of the Competition Act, which applies to all economic activity within South Africa or having an effect within South Africa. In this litigation, however, “effect” was not treated as a loose concept. The operative framework required “qualified effects” – i.e. that it was foreseeable that the