11th edition are there any sector-specific offences orcartel prohibition? exemptions? there are no...

The International Comparative Legal Guide to:

A practical cross-border insight into cartels and leniency

11th Edition

ICLGCartels & Leniency 2018

Published by Global Legal Group, in association with CDR, with contributions from:

Affleck Greene McMurtry LLP

AGON PARTNERS

Borenius Attorneys Ltd

Camilleri Preziosi Advocates

Crowell & Moring

Debarliev, Dameski & Kelesoska, Attorneys at Law

Drew & Napier LLC

ELIG, Attorneys-At-Law

Gowling WLG

Hannes Snellman Attorneys Ltd

INFRALEX

King & Wood Mallesons

Lakshmikumaran & Sridharan AttorneysMinterEllisonRuddWatts

Morais Leitão, Galvão Teles, Soares da Silva & Associados, Sociedade de Advogados, R.L.

Nagashima Ohno & Tsunematsu

Pachiu & Associates

Paul, Weiss, Rifkind, Wharton & Garrison LLP

Preslmayr Rechtsanwälte OG

Rahmat Lim & Partners

SBH Law Office

Shearman & Sterling LLP

Skadden, Arps, Slate, Meagher & Flom LLP

Steptoe & Johnson LLP

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Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

The International Comparative Legal Guide to: Cartels & Leniency 2018

General Chapters:

Country Question and Answer Chapters:

1 The Legal Parameters of the Commission’s Investigative Powers and the Imposition of Parental Liability in Cartel Cases – Elvira Aliende Rodriguez & Geert Goeteyn, Shearman & Sterling LLP 1

2 Individuals as Whistleblowers – Ingrid Vandenborre & Thorsten Goetz, Skadden, Arps, Slate, Meagher & Flom LLP 8

3 UK Competition Enforcement Outside the EU Single Market – Bernardine Adkins, Gowling WLG 14

4 Australia King & Wood Mallesons: Sharon Henrick & Wayne Leach 20

5 Austria Preslmayr Rechtsanwälte OG: Mag. Dieter Hauck & Marco Werner 30

6 Belarus SBH Law Office: Elena Selivanova & Ekaterina Shkarbuta 38

7 Belgium Crowell & Moring: Thomas De Meese 43

8 Canada Affleck Greene McMurtry LLP: W. Michael G. Osborne & Michael Binetti 49

9 China King & Wood Mallesons: Susan Ning & Hazel Yin 56

10 European Union Shearman & Sterling LLP: Elvira Aliende Rodriguez & Geert Goeteyn 65

11 Finland Borenius Attorneys Ltd: Ilkka Aalto-Setälä & Henrik Koivuniemi 74

12 France Steptoe & Johnson LLP: Jean-Nicolas Maillard & Camille Keres 81

13 Germany Shearman & Sterling LLP: Mathias Stöcker 88

14 India Lakshmikumaran & Sridharan Attorneys: Abir Roy 96

15 Italy Shearman & Sterling LLP: Paolisa Nebbia 103

16 Japan Nagashima Ohno & Tsunematsu: Eriko Watanabe 109

17 Macedonia Debarliev, Dameski & Kelesoska, Attorneys at Law: Dragan Dameski & Jasmina Ilieva Jovanovik 116

18 Malaysia Rahmat Lim & Partners: Raymond Yong Chin Shiung & Penny Wong Sook Kuan 124

19 Malta Camilleri Preziosi Advocates: Ron Galea Cavallazzi & Lisa Abela 129

20 New Zealand MinterEllisonRuddWatts: Jennifer Hambleton & Alisaundre van Ammers 135

21 Portugal Morais Leitão, Galvão Teles, Soares da Silva & Associados, Sociedade de Advogados, R.L.: Inês Gouveia & Luís do Nascimento Ferreira 141

22 Romania Pachiu & Associates: Remus Ene 153

23 Russia INFRALEX: Artur Rokhlin & Victor Fadeev 159

24 Singapore Drew & Napier LLC: Lim Chong Kin & Corinne Chew 166

25 Spain King & Wood Mallesons: Ramón García-Gallardo 173

26 Sweden Hannes Snellman Attorneys Ltd: Peter Forsberg & Haris Catovic 187

27 Switzerland AGON PARTNERS: Prof. Dr. Patrick L. Krauskopf & Fabio Babey 194

28 Turkey ELIG, Attorneys-At-Law: Gönenç Gürkaynak & Öznur İnanılır 200

29 United Kingdom Shearman & Sterling LLP: Matthew Readings & Shirin Lim 209

30 USA Paul, Weiss, Rifkind, Wharton & Garrison LLP: Charles F. (Rick) Rule & Joseph J. Bial 216

Contributing EditorsGeert Goeteyn & Matthew Readings, Shearman & Sterling LLP

Sales DirectorFlorjan Osmani

Account DirectorOliver Smith

Sales Support ManagerToni Hayward

Sub EditorHollie Parker

Senior EditorsSuzie Levy, Rachel Williams

Chief Operating OfficerDror Levy

Group Consulting EditorAlan Falach

PublisherRory Smith

Published byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: [email protected]: www.glgroup.co.uk

GLG Cover DesignF&F Studio Design

GLG Cover Image SourceiStockphoto

Printed byAshford Colour Press LtdNovember 2017

Copyright © 2017Global Legal Group Ltd.All rights reservedNo photocopying

ISBN 978-1-911367-81-9ISSN 1756-1027

Strategic Partners

ICLG TO: CARTELS & LENIENCY 2018 135WWW.ICLG.COM© Published and reproduced with kind permission by Global Legal Group Ltd, London

Chapter 20

MinterEllisonRuddWatts

Jennifer Hambleton

Alisaundre van Ammers

New Zealand

or as a result of a complaint or an application for immunity. The NZCC’s Competition and Consumer Investigation Guidelines set out the NZCC’s investigation process. An investigation is complete once the NZCC has decided it can be closed without an enforcement response or reached a decision as to the type and level of enforcement action it will take. If the NZCC considers that there has been a breach of the cartel prohibition and that it has sufficient evidence to prove it to the civil standard (on the balance of probabilities), it will initiate proceedings in the High Court. It is for the High Court to determine if a defendant has breached the cartel prohibition and, if so, impose penalties.

1.5 Arethereanysector-specificoffencesorexemptions?

There are no sector-specific offences or exemptions. However, there are numerous general exceptions and exemptions, including for:■ conduct which is authorised by any enactment;■ cartel provisions in contracts, arrangements or understandings

entered into between parties involved in a “collaborative activity”;

■ certain cartel provisions in vertical supply contracts;■ certain cartel provisions in joint buying and promotion

agreements;■ covenants in connection with the sale of a business that protect

the purchaser in respect of the goodwill of the business; ■ provisions that relate exclusively to the export of goods from

New Zealand or exclusively to the supply of services outside New Zealand, if full and accurate particulars of the provision including any method of fixing, controlling, or maintaining such prices were provided to the NZCC before the expiration of 15 working days after the date the contract or arrangement was made;

■ any act done, other than in trade, in concert by users of good or services against the suppliers of those goods or services;

■ provisions that provide for exclusivity for the carriage of goods by sea from a place in New Zealand to a place outside New Zealand or from a place outside New Zealand to a place in New Zealand; and

■ provisions that provide for the acquisition or disposition of assets of a business or shares.

1.6 Is cartel conduct outside your jurisdiction covered by the prohibition?

Yes, the Act applies to conduct engaged in outside of New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct affects a market in New Zealand.

1 The Legislative Framework of the Cartel Prohibition

1.1 What is the legal basis and general nature of the cartel prohibition, e.g. is it civil and/or criminal?

New Zealand’s principle competition legislation is the Commerce Act 1986 (Act), which contains the cartel prohibition and related provisions. The cartel prohibition is civil in nature.

1.2 Whatarethespecificsubstantiveprovisionsforthecartel prohibition?

A new cartel prohibition was recently introduced with the enactment of the Commerce (Cartels and Other Matters) Amendment Act 2017 (Cartels Act), which came into force on 15 August 2017. The new prohibition replaces the previous price fixing prohibition and prohibits a person from entering into a contract or arrangement, or arriving at an understanding, that contains a cartel provision, or giving effect to a cartel provision. A cartel provision is a provision that has the purpose, effect, or likely effect of one or more of the following in relation to the supply or acquisition of goods in New Zealand:■ price fixing;■ restricting output; and/or■ market allocating.Cartel provisions are generally unenforceable unless one of the exceptions to the cartel prohibition applies, or the parties to the relevant contract, arrangement or understanding have obtained clearance from the New Zealand Commerce Commission (NZCC) to use the provision in the context of a collaborative activity.

1.3 Who enforces the cartel prohibition?

The Act is administered and enforced by the NZCC. The NZCC has the power to investigate potential breaches of the cartel prohibition and can initiate civil proceedings in the High Court where it believes parties have engaged in cartel conduct.

1.4 What are the basic procedural steps between the opening of an investigation and the imposition of sanctions?

The NZCC can initiate an investigation either on its own information

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Investigatory Power Civil/Administrative Criminal■ Right to require an explanation of documents or information supplied

Yes* N/A

■ Right to secure premises overnight (e.g. by seal)

Yes* N/A

Please Note: * indicates that the investigatory measure requires the authorisation by a court or another body independent of the competition authority.

2.2 Pleaselistspecificorunusualfeaturesoftheinvestigatory powers referred to in the summary table.

Absent a search warrant, the NZCC’s search and entry powers are limited to the following:■ NZCC can rely on an implied licence to enter a business

premise during business hours or approach the front door of a residential premised to speak to the occupants like anyone else, but must leave if asked to do so.

■ NZCC staff can carry out a search with the consent of the person in control of a place, vehicle or thing.

2.3 Are there general surveillance powers (e.g. bugging)?

No. The NZCC does not have any general surveillance powers and cannot obtain a warrant authorising the use of surveillance and interception devices as these are only available in relation to serious criminal offences.

2.4 Arethereanyothersignificantpowersofinvestigation?

The Act allows the Government or the NZCC to enter into co-operation arrangements with overseas governments and competition regulators. New Zealand currently has formal cooperation arrangements with Australia, Canada, Singapore, Taiwan and the UK, to allow the sharing of information and/or the provision of other investigative assistance.

2.5 Who will carry out searches of business and/or residential premises and will they wait for legal advisors to arrive?

The NZCC will carry out searches of business and/or residential premises and is entitled to enlist other suitable persons to assist with the execution of a search warrant. The NZCC is not required to give advance notice of its intention to conduct a search or to wait for legal advisors to arrive. However, if requested, the NZCC will generally provide an opportunity for the occupier of premises under search to contact their legal advisors.

2.6 Is in-house legal advice protected by the rules of privilege?

Yes. Privilege will apply to a communication with an in-house legal advisor that is confidential and made in the course of and for the purpose of obtaining or providing legal advice. Communications with an in-house lawyer acting in a capacity other than in his or her legal capacity (for example, as a commercial manager or business advisor) will not attract legal advice privilege.

A person (person A) engages in conduct in New Zealand if:■ any act or omission forming part of the conduct occurs in

New Zealand; or■ another person (person B) engages in conduct in New

Zealand, and the conduct of person B is deemed to be the conduct of person A.

The conduct of person B is deemed to also be the conduct of person A if:■ person B is a director, employee or agent of person A, acting

within the scope of his or her actual or apparent power; or ■ person B was acting on the direction, or with the consent or

agreement, of a director, employee, or agent of person A who was acting within the scope of the director’s, employee’s, or agent’s actual or apparent authority.

The extraterritorial application of the Act was considered in Commerce Commission v Visy Board Pty Ltd [2012] NZCA 383. In that case, Visy Board Pty Ltd (Visy), an Australian company, admitted to having participated in cartel conduct with Amcor Australia and was fined $36 million in Australia. The New Zealand High Court found that whether or not a person is “carrying on business in New Zealand” is not confined to whether or not the company maintained a systematic and continuous physical presence in New Zealand and the analysis requires recognition of the practical modes of transacting business, including the fact that modern day commerce necessitates dealing with consumers through a variety of methods of communication including the internet.Some of the reasons that Visy was found to carry on business in New Zealand included:■ Visy operated Visy Board NZ as an integrated division of

Visy and presented itself to trans-Tasman customers as one business including the New Zealand division;

■ Visy was directly involved in Visy Board NZ’s New Zealand operations; and

■ Visy dealt directly with New Zealand customers on various occasions, particularly with major customers.

2 Investigative Powers

2.1 Summary of general investigatory powers.

Table of General Investigatory Powers

Investigatory Power Civil/Administrative CriminalOrder the production of specific documents or information

Yes N/A

Carry out compulsory interviews with individuals

Yes N/A

Carry out an unannounced search of business premises

Yes* N/A

Carry out an unannounced search of residential premises

Yes* N/A

■ Right to ‘image’ computer hard drives using forensic IT tools

Yes* N/A

■ Right to retain original documents Yes* N/A

MinterEllisonRuddWatts New Zealand


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It is notable that the NZCC has not filed charges for the above offences in almost a decade. However, it is difficult to say whether the NZCC’s approach to the enforcement of these offences has changed or whether it is simply a matter of no cause for enforcement arising.

3 Sanctions on Companies and Individuals

3.1 What are the sanctions for companies?

The maximum pecuniary penalty for a company is (per breach) the greater of $10 million, and either: ■ three times the value of any commercial gain resulting from

the breach; or ■ if the commercial gain cannot be readily ascertained, 10

per cent of the turnover of the company, including all of its interconnected bodies corporate.

3.2 What are the sanctions for individuals (e.g. criminal sanctions,directordisqualification)?

For individuals, the maximum pecuniary penalty for cartel conduct is $500,000. The Court must order an individual who has engaged in cartel conduct to pay a pecuniary penalty unless it considers that there is good reason not to.The Court can also order that an individual be banned from directing, promoting or otherwise being involved in the management of a company for up to five years.

3.3 Canfinesbereducedonthebasisof‘financialhardship’or‘inabilitytopay’grounds?Ifso,byhowmuch?

Yes. In setting penalties, the Court must have regard to “all relevant factors”, including the size and resources of the defendant.

3.4 What are the applicable limitation periods?

The NZCC must commence proceedings for alleged breaches of the cartel prohibition within three years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered, with a “long-stop” limitation of 10 years.

3.5 Canacompanypaythelegalcostsand/orfinancialpenalties imposed on a former or current employee?

A company may, if authorised by its constitution, indemnify or have insurance for its officers and employees for costs incurred in defending or settling proceedings commenced by the NZCC, provided the officer or employee is successful in defending the proceedings or the proceedings are discontinued. However, a company must not indemnify its officers, employees or agents, in respect of a pecuniary penalty imposed for a contravention of the cartel prohibition or any associated defence costs. Any such indemnity given is void and the company would be liable for a pecuniary penalty of up to two times the value of the contravening indemnity.

3.6 Can an implicated employee be held liable by his/her employerforthelegalcostsand/orfinancialpenaltiesimposed on the employer?

The Act does not provide any means by which an employer can hold

2.7 Please list other material limitations of the investigatory powers to safeguard the rights of defence of companies and/or individuals under investigation.

If, in the course of executing a search warrant, NZCC staff identify any material they have reasonable grounds to believe may be privileged, they must provide an opportunity for that privilege to be claimed. If the NZCC is unable to locate anyone who can claim privilege within a reasonable time, it can apply to a court for determination as to the status of the material. In the event of a dispute as to privilege, the NZCC will secure the material (without looking at it) and provide the party claiming privilege with the opportunity to explain its grounds in the hope of resolving the matter by agreement. If agreement cannot be reached, the merits of the privilege claim will be determined by a court. If it is not possible to identify and separate privileged material onsite, the NZCC will secure or seize all material and make appropriate arrangements to ensure that privilege is protected during the identification and separation process. A person cannot refuse to comply with any requirement to furnish information, produce documents, or give evidence, or if appearing before the NZCC, to answer any question or produce any document, on the ground that to do so might tend to incriminate him or her. However, statements made to the Commission cannot be used against the person who made them in criminal proceedings or proceedings for pecuniary penalties under the Act, except in the case of perjury and offences relating to the obstruction of the NZCC’s exercise of its investigatory powers.

2.8 Are there sanctions for the obstruction of investigations? If so, have these ever been used? Has the authorities’ approach to this changed, e.g. become stricter, recently?

It is a criminal offence to:■ without reasonable excuse, refuse or fail to comply with a

notice requiring the provision of documents or information or to appear before the Commission;

■ knowingly provide the NZCC with false or misleading documents, information or evidence;

■ in the context of a compulsory interview with the NZCC, refuse to take an oath or affirmation, answer any question or produce any document; or

■ resist, obstruct or delay a NZCC employee acting pursuant to a search warrant.

A person who commits any of the above offences is liable on conviction to, in the case of an individual, a fine of up to $100,000 and in the case of a body corporate, a fine of up to $300,000.These sanctions have been used on at least three occasions:■ in 2005, Koppers Arch Wood Protection and its former general

manager (GM) were fined $25,000 and $8,000, respectively, for failing to produce company documents when required to do so;

■ in 2006, Osmose, a participant in the same wood preservatives cartel as Koppers, was fined $13,000 after it pleaded guilty to a charge of failing to provide documents, including a particularly pertinent non-public price list that Osmose had obtained from Koppers; and

■ in 2008, Aerolineas Argentinas pleaded guilty to a charge of failing to comply with a statutory notice by providing the required documents five months after the due date and was fined $11,000.



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4.3 Can applications be made orally (to minimise any subsequentdisclosurerisksinthecontextofcivildamages follow-on litigation)?

Yes. The proffer may be made orally at the applicant’s request, provided the NZCC considers this is justified. The NZCC will, however, create records of discussions and contact.

4.4 Towhatextentwillaleniencyapplicationbetreatedconfidentiallyandforhowlong?Towhatextentwill documents provided by leniency applicants be disclosed to private litigants?

Both the NZCC and applicants for immunity are subject to confidentiality obligations. The NZCC has stated that it will endeavour to protect to the fullest extent confidential information provided by holders of a marker or conditional immunity. The NZCC will not waive privilege over any information provided to it, except where to do so is necessary for the NZCC to conduct the investigation or issue proceedings. Information is also received by the NZCC on the basis that it will not be used as evidence in proceedings against the applicant for that cartel unless immunity is revoked or a marker is not perfected. However, the NZCC may share confidential information with other competition authorities overseas where the NZCC has sought a waiver from the applicant. Information an applicant discloses to the NZCC in relation to a leniency application may become discoverable in third-party private enforcement actions. However, the applicant may be able to assert privilege over proffers and related information provided to the NZCC. Public interest immunity grounds may also be of assistance to an applicant in resisting production; however, this has not yet been tested in New Zealand.

4.5 Atwhatpointdoesthe‘continuouscooperation’requirement cease to apply?

Full and continuous cooperation is required for the duration of any investigation and/or court proceedings.

4.6 Istherea‘leniencyplus’or‘penaltyplus’policy?

Yes, the NZCC has an Amnesty Plus policy. Under the policy, applicants who do not qualify for conditional immunity or a marker may be entitled to conditional immunity for their participation in a second cartel and a recommended penalty concession in respect of the first cartel.To obtain “Amnesty Plus”, an applicant must inform the NZCC of their participation in a second cartel of which the NZCC was not aware or for which it does not have sufficient evidence to take legal action. The second cartel must be completely separate from the first cartel.

5 Whistle-blowing Procedures for Individuals

5.1 Are there procedures for individuals to report cartel conduct independently of their employer? If so, please specify.

Yes. An application for conditional immunity may be made by

an employee liable for legal costs and/or financial penalties imposed on the employer. However, in some circumstances, an employer may have an action against an employee or officer under general law (for example, for negligence or breach of contract or a directors’ duty).

4 Leniency for Companies

4.1 Is there a leniency programme for companies? If so, please provide brief details.

Yes, the NZCC operates a Cartel Leniency Policy (Policy) which outlines the NZCC’s approach to applications for immunity and leniency for cooperation by companies and individuals. Under the Policy, the NZCC may grant conditional immunity to the first cartel member to approach the NZCC. The immunity is from prosecution by the NZCC only, and does not extend to private enforcement actions by third parties. The applicant must meet (and continue to meet) the following conditions for immunity to be available:■ the applicant is the first applicant to meet the criteria for

conditional immunity; ■ the applicant is or was a participant in the cartel; ■ the party admits that its participation in the cartel may breach

the relevant sections of the Act; ■ the applicant is no longer involved in the cartel, or has

informed the NZCC that it will cease its involvement (except in particular circumstances);

■ the applicant has not coerced others to participate in the cartel;

■ the applicant makes admissions in relation to actions that are genuinely corporate acts as opposed to those undertaken by individuals (in the case of companies); and

■ the applicant agrees to provide full and continuing cooperation to the NZCC in its investigation, and in any subsequent proceedings.

The NZCC may also exercise its discretion to take a lower level of enforcement action against subsequent immunity applicants in exchange for information and continuing cooperation.

4.2 Istherea‘marker’systemand,ifso,whatisrequiredto obtain a marker?

Yes. To obtain a marker, an applicant needs to be the first person (company or individual) to approach the NZCC requesting immunity for a particular cartel. The prospective applicant must provide the NZCC with sufficient information on the nature of the cartel, such as the product(s) and/or service(s) involved, the main participants, and the impact of the cartel on a market in New Zealand before a marker will be given.Once a marker has been obtained, the applicant must then provide the NZCC with a written or oral statement called a “proffer” to perfect the marker. The standard time allowed to perfect the marker is 28 calendar days, but a longer or shorter time may be agreed with the NZCC.Subsequent applicants will be informed of their place in the queue for conditional immunity. If the first applicant fails to perfect the marker, or if conditional immunity is not granted, the NZCC may offer a marker or conditional immunity to the next applicant in the queue, subject to their meeting the conditions.



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loss or damage caused by the conduct. In addition, the High Court can order exemplary damages, notwithstanding that the person may have paid, or at a later date be required to pay, pecuniary penalties in relation to the same conduct. Civil proceedings seeking damages can be commenced in the High Court by filing and serving a notice of proceeding and statement of claim. Legally, the positon is not different for follow on actions as opposed to stand alone actions. In both cases, the plaintiff must establish that the defendant has breached the Act and that the plaintiff has suffered a loss as a result. A plaintiff cannot simply rely on a judgment in a pecuniary penalty case as prima facie evidence of a breach or that loss or damage occurred.

8.2 Do your procedural rules allow for class-action or representative claims?

There is no codified “class actions” regime in New Zealand. The High Court Rules do allow for collective claims via representative actions brought by a named representative plaintiff or plaintiffs on behalf of, and for the benefit of, others with the “same interest” in the subject matter of the proceeding. However, to date, no representative actions alleging breaches of the Act have been brought.

8.3 What are the applicable limitation periods?

Three years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered, with a “long-stop” limitation of 10 years.

8.4 Does the law recognise a “passing on” defence in civil damages claims?

The New Zealand courts are yet to consider and determine whether a “passing-on defence” is available in this context.

8.5 What are the cost rules for civil damages follow-on claims in cartel cases?

Subject to the courts’ discretion, the general principle is that an unsuccessful party will be required to contribute to the successful party’s costs. Typically, the costs awarded are calculated on a scale basis and are significantly less (around one third) than actual legal costs. In some circumstances, increased and/or indemnity costs may also be awarded.

8.6 Have there been any successful follow-on or stand alone civil damages claims for cartel conduct? If there have not been many cases decided in court, have there been any substantial out of court settlements?

We are not aware of any successful follow on or stand alone civil damages claims for cartel conduct in New Zealand. It is possible that some claims have been settled out of court but the fact and terms of settlement would be confidential as between the parties.

individuals or companies. Where an applicant is an individual, they must be, or have been, a director, officer or employee of a company that was a party to the cartel. A company will not qualify for conditional immunity if it has already been granted to an individual employee.

6 Plea Bargaining Arrangements

6.1 Are there any early resolution, settlement or plea bargaining procedures (other than leniency)? Has the competition authorities’ approach to settlements changed in recent years?

The NZCC is open to early resolution, including settlement, of actual or potential court proceedings in appropriate cases. The NZCC may not consider it appropriate to settle where the conduct is particularly serious or a legal precedent is required. Settlements with the NZCC can be:■ Out-of-court, where proceedings have not been issued and the

terms of the settlement do not require the Court’s approval. Generally, an admission of breach will be required.

■ In-court, where settlements have been commenced or the Court’s involvement is required to implement the settlement terms. For example, the Court may need to set a penalty or make other orders.

The NZCC has reached in-court settlements in at least five cartel cases since 2011.

7 Appeal Process

7.1 What is the appeal process?

Decisions of the High Court can be appealed to the Court of Appeal within 20 working days of the decision. A decision of the Court of Appeal can only be appealed to the Supreme Court with leave. An application for leave must be filed and served within 20 working days of the decision.

7.2 Does an appeal suspend a company’s requirement to paythefine?

Not automatically. However, an appellant can apply to either the High Court or the Court of Appeal for an order suspending the requirement to pay a penalty pending resolution of an appeal.

7.3 Does the appeal process allow for the cross-examinationofwitnesses?

In general, no. However, a party can apply for leave to adduce further evidence on questions of fact by oral examination in Court. If leave is granted, cross-examination will be allowed.

8 Damages Actions

8.1 What are the procedures for civil damages actions for loss suffered as a result of cartel conduct? Is the positiondifferent(e.g.easier)for‘follow-on’actionsasopposedto‘standalone’actions?

Any person that contravenes the cartel prohibition is liable for any



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9.2 Please mention any other issues of particular interest in your jurisdiction not covered by the above.

The New Zealand Government has recently announced proposed amendments to the Act which will allow the Minister for Commerce and Consumer Affairs to direct the NZCC to conduct formal market studies. The recommendation was made following a targeted review of the Act, which identified New Zealand as an outlier, with approximately 40 other competition agencies having the ability to conduct market studies. At present, the Ministry of Business, Innovation and Employment expects to release an exposure draft of the Bill to introduce the market studies power for public consultation towards the end of 2017. See https://minterellison.co.nz/our-view?services=competition-and-regulation for regular updates on competition law practice in New Zealand.

9 Miscellaneous

9.1 Pleaseprovidebriefdetailsofsignificant,recentorimminentstatutoryorotherdevelopmentsinthefieldof cartels, leniency and/or cartel damages claims.

The Act was recently amended by the Cartels Act. The key changes are:■ Introduction of the new cartel prohibition, which replaces the

previous prohibition on price fixing.■ New exceptions to the cartel prohibition for collaborative

activities (replacing the old “joint venture” exemption), vertical supply contracts, and joint buying and promotion agreements.

■ A new clearance regime for collaborative activities.The new cartel prohibition applies immediately to all contracts entered into after 15 August 2017. However, transitional provisions provide for a nine-month grace period during which the Commission cannot enforce the cartels prohibition in relation to pre-15 August contracts.


Jennifer HambletonMinterEllisonRuddWattsLevel 20 88 Shortland Street AucklandNew Zealand

Tel: +64 9 353 9794Email: [email protected]: www.minterellison.co.nz

Alisaundre van Ammers MinterEllisonRuddWattsLevel 18125 The TerraceWellington New Zealand

Tel: +64 4 498 5143Email: Alisaundre.Vanammers@ minterellison.co.nzURL: www.minterellison.co.nz

Named New Zealand Law Firm of the Year by Chambers and Partners in 2017, MinterEllisonRuddWatts is a top-tier New Zealand law firm known for providing clients with technically excellent legal solutions and innovative advice. We are trusted advisors and work alongside our clients to ensure success. We are proud to be a New Zealand law firm offering a global outlook. Our offices in Auckland and Wellington are able to access an international network through the MinterEllison Legal Group, a leading firm in the Asia-Pacific. The firm supports numerous charitable endeavours and organisations through its pro bono and fundraising initiatives.

Jennifer is a Senior Associate with experience on contentious and non-contentious competition and consumer law matters and general commercial litigation.

Jennifer has extensive experience as a commercial litigator. She has represented commercial and government clients in Australia and New Zealand on a number of large complex competition enforcement actions, consumer law actions, actions for breaches of director’s duties, contractual disputes and negligence actions.

Jennifer has advised clients in the technology and telecommunications, insurance, gambling, airline, accommodation, FMCG, pharmaceuticals and energy industries on a range of commercial issues. This includes advising clients on the competition law implications of mergers and joint ventures, exclusive agreements, pricing practices, dealings with competitors and market behaviour, consumer law issues arising from contractual terms and advertising and promotions, contractual issues including termination rights, restraints of trade and confidentiality, and compliance with industry-specific codes.

Alisaundre (Ali) is a Senior Solicitor with substantial experience in commercial litigation and disputes resolution. She advises clients on contentious and non-contentious aspects of competition, consumer law and public law.

Having worked in the public sector and in private practice, Ali has represented a broad range of clients, from national government departments and ministries to international corporate clients, with a particular focus on the energy sector.

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Current titles in the ICLG series include:

■ Alternative Investment Funds■ Anti-Money Laundering■ Aviation Law■ Business Crime■ Cartels & Leniency■ Class & Group Actions■ Competition Litigation■ Construction & Engineering Law■ Copyright■ Corporate Governance■ Corporate Immigration■ Corporate Investigations■ Corporate Recovery & Insolvency■ Corporate Tax■ Cybersecurity

■ Data Protection■ Employment & Labour Law■ Enforcement of Foreign Judgments■ Environment & Climate Change Law■ Family Law■ Fintech■ Franchise■ Gambling

■ Insurance & Reinsurance■ International Arbitration■ Lending & Secured Finance■ Litigation & Dispute Resolution■ Merger Control■ Mergers & Acquisitions■ Mining Law■ Oil & Gas Regulation■ Outsourcing■ Patents■ Pharmaceutical Advertising■ Private Client■ Private Equity■ Product Liability■ Project Finance■ Public Funds■ Public Procurement■ Real Estate■ Securitisation■ Shipping Law■ Telecoms, Media & Internet■ Trade Marks■ Vertical Agreements and Dominant Firms

11th edition are there any sector-specific offences orcartel prohibition? exemptions? there are no...

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