Tribunal rules that it has jurisdiction to hear the “Forex Cartel case” against foreign and local banks
The Competition Tribunal (“Tribunal”) has ruled that is has jurisdiction to hear the so-called “Forex Cartel case” in which foreign and local banks are implicated in alleged collusion to manipulate the Rand-Dollar exchange rate.
The Tribunal in its order and reasons states: “The Respondents are accused of engaging in conduct considered the most egregious in competition law. Furthermore, the alleged conduct relates to fixing and manipulating the rand/dollar exchange rate, which has a central and crucial role in the South African economy.”
The ruling forms part of a Tribunal order issued today, in which it has dismissed a second round of exception, objection, dismissal and strike out applications brought by various banks, in response to the Competition Commission’s (“Commission”) updated complaint referral (charge sheet).
The Tribunal has also granted the Commission’s applications to join a further nine banks as respondents in the main matter.
Various banks alleged to be part of the cartel conduct had raised objections/opposition to the Commission’s updated complaint referral on the grounds of, among others, lack of jurisdiction of the South African competition authorities, time bar, no valid initiation by the Commission and insufficiency of pleaded facts by the Commission to support its case.
In addition to its ruling that it has jurisdiction to hear the matter, the Tribunal has ordered that all of the banks must respond to the referral by filing their answering affidavits (in the main matter dealing with the merits of the case) within 40 business days of the Tribunal’s order. If the Commission wishes to file replying affidavits, it must do so within 20 business days of the banks’ answering affidavits.
The Tribunal’s order effectively provides for the pleading stage of the matter to progress in line with specified time frames before the merits (hearing of evidence) stage.
The Tribunal’s decision to grant the Commission’s applications to join a further nine banks as respondents to the updated complaint referral brings the total number of banks, implicated in the matter, to 28. The nine banks added are: HSBC Bank USA, National Association Inc.; Merrill Lynch Peirce Fenner And Smith Inc.; Bank of America, N.A; Credit Suisse Securities (USA) LLC; Nedbank Group Ltd; Nedbank Ltd; FirstRand Ltd; FirstRand Bank Ltd; and Standard Americas Inc.
The Tribunal’s order and extensive reasons can be downloaded from the Tribunal’s website via the following link: https://www.comptrib.co.za/open-file?FileId=53283 A few highlights are summarised below:
The Tribunal has categorised the banks into various groups relating to its ability to exercise jurisdiction over them: (i) “incola” (local banks); (ii) “local peregrini” (foreign banks with a presence in South Africa); and (iii) “pure peregrini” (foreign banks without a presence in South Africa). In this round of applications, the peregrini adopted a range of positions in respect of the Tribunal’s ability to exercise subject-matter and personal jurisdiction.
The Tribunal has ultimately concluded that it does have jurisdiction: “…the Referral establishes adequate connecting factors to enable us to exercise both subject-matter and personal jurisdiction over all peregrini Respondents.”
Commission’s compliance with Tribunal and CAC order
Following the first round of exceptions by various banks, the Tribunal, and later the Competition Appeal Court (“CAC”), required the Commission to file a new referral affidavit setting out further details to overcome its deficiently pleaded case.
On the banks’ arguments that the Commission did not comply with the CAC order, the Tribunal has found that the Commission has complied: “When regard is had to the pleading as a whole, the requirements of those orders have been substantially dealt with. For example, the Tribunal order required the Commission to plead the [single overall conspiracy] which has been complied with. The CAC order required the Commission to plead adequate connecting factors to show the [single overall conspiracy] between foreign banks and local banks. We have found that the Commission has complied with that… Accordingly, we find that the objection based on non-compliance with the CAC order is not a discrete ground of objection and cannot be relied upon by the Respondents to have a second bite at the cherry...”
The Tribunal has noted that the Commission’s referral runs into 107 pages (excluding annexures) and “contains adequate details that have enabled us to conclude that the Referral, as a whole, prima facie, shows that there was a [single overall conspiracy] between the foreign and local banks to manipulate trading in the USD/ZAR currency pair.”
The Tribunal has concluded: “…on the whole, the Respondents understand what the Commission’s alleged case is...”
It was argued that a complaint referral against a respondent is not valid unless an investigation was initiated against them specifically. In addition, if the complaint had not been initiated against a particular firm, that firm could not be joined as a respondent in a complaint that had already been referred to the Tribunal.
The Tribunal has found from recent case law that there is nothing in the Competition Act (“the Act”) that precludes the Commission from tacitly initiating against a respondent after it has referred the complaint to the Tribunal and concludes: “To interpret the jurisprudence in the way that the Respondents urge upon us, both the objection and joinder Respondents - namely that the Commission is absolutely barred from referring against respondents or joining respondents, after it has referred the complaint to the Tribunal, if they were not specifically mentioned at a particular point in time in the course of the Commission’s investigation - would lead to the absurd outcome that the Commission would be precluded from joining a potential, or for that matter even a self-confessed member of a cartel, after it has referred a complaint, an outcome that is not available even to accused in criminal proceedings.”
Over the years, respondents have persistently argued that section 67(1) of the Act presents a guillotine on the ability of the Commission to initiate a complaint more than three years after the practice has ceased. In this matter, in relation to the time bar, the Tribunal has found this objection to have little merit in light of the Constitutional Court’s decision in Pickfords. The Tribunal has further concluded: “In any event the issue of whether the complaint has been time barred cannot be decided without recourse to a factual enquiry.”
The Commission alleges that between 2007 and at least 2013, 28 banks from multiple jurisdictions in Europe, South Africa, Australia and the United States of America conspired to manipulate the South African Rand through information sharing on electronic and other platforms and through various co-ordination strategies when trading in the USD/ZAR currency pair.
The Commission maintains that the manipulation impacted on the exchange rate of the South African Rand which, in turn, affected various parts of the South African economy including imports and exports; foreign direct investment; public and private debt; company balance sheets, with the attendant implications for the price of goods and services; and financial assets.
The Commission alleges that the respondent banks contravened section 4(1)(b) of the Act in that they reached an agreement and/or coordinated their activities to participate in a single overarching conspiracy to manipulate and distort the normal competitive conditions in the trading of the USD/ZAR currency pair.
Gillian de Gouveia, Communications Officer
On behalf of the Competition Tribunal of South Africa
Cell: +27 (0) 82 410 1195
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