Terminating Cartel Behavior

Bell Dewar recently presented a paper co-authored by Neil Mackenzie and Stephen Langbridge at the Fourth Annual Conference on Competition Law, Economics and Policy in South Africa hosted by the Competition Commission, Competition Tribunal and Mandela Institute.

Based on the Competition Tribunal's decision in Competition Commission / Pioneer Foods, a cartel subsists when contact between competitors results in the concurrence of wills between the conspiring firms and behaviour in the market gives effect to the parties intentions.

The paper examines the standard of proof required to show that participation in a cartel agreement stopped from a particular date. This is relevant in two circumstances: where a firm raises a defence of prescription under section 67(1) of the Act, and in determining 'duration' of a firm's participation in the cartel for purposes of calculating the relevant penalty.