A foreign investor needs to be aware of the prohibitions on unfair competition in Trinidad and Tobago.
Unfair competition may arise through the dumping of goods into the local market, or through unfair competitive practices conducted by dominant business enterprises. Legislation has been introduced to afford a remedy to local manufacturers who face unfair competition in the form of (1) imports of dumped or subsidized goods where the local manufacturer suffers material injury caused by such imports; and (2) anti-competitive practices. Fair Trading legislation has been introduced to promote and maintain effective competition; however, much of this legislation has not yet come into force but will only require proclamation by the President, and as such, can be brought into force at practically a moment’s notice.
In this Chapter, Kevin Nurse, Senior Associate in the Business, Energy & Tax Practice Group, gives an overview of the legislative controls and restrictions on unfair competition.
Anti-Dumping
Dumping and Subsidy Defined
Dumping occurs where a foreign entity exports into Trinidad and Tobago goods at a price which is lower than the price it would normally charge for the same goods in its own domestic market.
A subsidy is deemed to exist where a foreign government or public body provides a financial contribution to an entity which exports to Trinidad and Tobago, thereby affecting the price at which such goods may be sold in Trinidad and Tobago.
The act of dumping and the provision of subsidies may have the effect of causing injury to local manufacturers who are unable to compete with the price of goods imported into the country.
The following pieces of legislation have been introduced in Trinidad and Tobago to combat the effects of such anti-competitive activities:
· The Anti-Dumping and Countervailing Duties Act, Chapter 78:05 (the “Act”);
· The Anti-Dumping and Countervailing Duties Regulations; and
· The Anti-Dumping and Countervailing Duties (Subsidies) Regulations.
The Anti-Dumping Authority
The Anti-Dumping Authority established by the Minister of Trade and Industry pursuant to the Act is under a duty to:
· investigate the existence, degree and effect of alleged dumping or subsidizing of goods;
· ascertain whether any imported goods cause or threaten to cause material injury to any industry in Trinidad and Tobago or materially retard the establishment of any new industry;
· identify goods liable for any duty (see below);
· submit findings to the Minister of Trade as to the margin of dumping or the margin of subsidy;
· make recommendations to the Minister regarding directions and determinations.
Material injury and Causation
The mere act of dumping or foreign subsidization is not prohibited. What is prohibited is such action which has caused material (or actionable) injury to the production in Trinidad and Tobago of identical or similar goods by local manufacturers. It cannot automatically be presumed that dumped or subsidized goods are the cause of injury. In fact, the Anti-Dumping Regulations list a number of factors which may cause injury but which will not be attributable to the dumped or subsidized goods.
Investigations of the Anti-Dumping Authority
The Anti-Dumping Authority may initiate an investigation on its own initiative, or at the direction of the Minister of Trade. The Authority may also receive a complaint in writing, by or on behalf of local producers of identical or similar goods who have been injured by the imports. Certain information, as prescribed by the Regulations, must be set out in the complaint. The Authority then decides whether to initiate an investigation.
Before the Anti-Dumping Authority can initiate an investigation, it must satisfy itself that it has sufficient prima facie evidence of:
· dumping or the giving of a subsidy, and of the quantum;
· actionable injury;
· a causal link between such imports and the alleged actionable injury.
Imposing Anti-Dumping/Countervailing Duties (taxes)
Where it has been determined that that dumping or subsidization has occurred which has caused material (or actionable) injury, as a first step the foreign exporters shall be given the opportunity to cease exporting at dumped prices.
Where the Minister of Trade and Industry on the recommendation of the Anti-Dumping Authority has determined that dumping or subsidization has occurred which has caused material (or actionable) injury, (and that the foreign exporters have not within thirty days ceased exporting as requested) the Minister may impose certain duties. In the case of dumping, the Minister may impose an “anti-dumping duty”; and in the case of a subsidization, the Minister may impose a “countervailing duty”.
The rate of the anti-dumping duty shall not exceed an amount that is necessary to prevent dumping and in any event shall not exceed the margin of dumping. Similarly, the rate of the countervailing duty shall not exceed an amount that is necessary to prevent actionable injury being caused and in any event shall not exceed the amount of the subsidy given on the goods.
Remedies against imposition of duties
A person aggrieved by an order imposing duty may appeal to the Tax Appeal Board. As a body deriving its powers from statute, should the Anti-Dumping Authority fail to comply in material respects with its enabling legislation or the requirements of natural justice, it could be subject to Judicial Review of the exercise of such powers before the Supreme Court on any or all of the grounds of illegality, irrationality or procedural impropriety.
Anti-Competition
Anti-competitive practices
Anti-competition (also known as antitrust) laws are aimed at protecting trade and commerce from unfair business practices. Such laws have three primary objectives, namely:
· Supervising the mergers and acquisitions of large corporations, to restrain, prohibit or provide limited approval to transactions that are likely to threaten the competitive process.
· Prohibiting agreements or practices that restrict free trading and competition between business entities.
· Prohibiting abusive monopolistic practices by an entity dominating a market. Such practices may include preventing others from engaging in competitive conduct, exclusive dealing, market restriction, etc.
Anti-Competition Legislation
The Fair Trading Act, No. 13 of 2006 has been introduced with the aim of establishing of a Fair Trading Commission, and promoting and maintaining fair competition in the Trinidad and Tobago economy, and to ensure that competition is not distorted, restricted or prevented, to the detriment of the community.
Part III of the Act is of particular significance to foreign investors as it prohibits or controls certain mergers, anti-competitive agreements and monopolistic behaviour. However, to date this part of the Act has not as yet come into operation.
The Act does not apply to arrangements for collective bargaining, agreements regarding intellectual property, professional associations, activities required or authorised by any treaty or agreement to which Trinidad and Tobago is a party, companies that fall under the purview of the Telecommunications Authority Act 2001, banks or non-bank financial institutions that fall under the purview of the Securities Industry Act 1995, and any other business or activity declared by the Minister by Order subject to affirmative resolution of Parliament.
Prospective protection against unfair trading
The Anti-Competition Provisions under Part III of the Act are considered below:
· Mergers: The Act prohibits all anti-competitive mergers but enables the Commission to grant permission for mergers of enterprises if the proposed mergers are not detrimental to the consumer or to the economy. It also empowers the Commission to take steps for the determination of mergers which have been effected without obtaining permission under the Act. Section 16 empowers the Commission to initiate an investigation into joint ventures and other types of mergers for which no permission has been granted.
· Anti-competitive agreements: The Act creates the offence of entering into or giving effect to horizontal agreements or vertical agreements and enables the Commission to agree with businesses which have entered into anti-competitive agreements before the coming into operation of the Act, to phase out and terminate the agreements.
· Monopolies: The Act provides that an enterprise has monopoly power in a market if it, by itself or together with an inter-connected company, has sufficient economic strength that would enable it to operate in the market without effective constraints from its competitors or potential competitors. Such an enterprise will be deemed to have abused that power if it impedes the maintenance or development of effective competition in a market. The Commission has the power to initiate an investigation if it has reason to believe that an enterprise has monopoly power in a market and has abused or is abusing that power (only if the Commission is satisfied that the enterprise concerned controls more than forty per-cent of the market).
As noted above, to date this part of the Act has not as yet come into operation.
Status of the Legislation
Parts IV, V and VI of the Act were proclaimed on April 26, 2007 to facilitate the appointment of the Commissioners of the Fair Trading Commission, the Executive Director and other key staff. The Ministry of Trade and Industry reports that the Act will be proclaimed in a phased approach, and that the proclamation of the remaining parts of the Act is currently with the Cabinet.
The Fair Trading Commission
Under Part II the Act, the Commission exists in the form of a company. The Commission may of its own initiative or by request of any interested person, initiate investigation of suspected anti-competitive behaviour by business enterprises. It also has the power to make an application to the Court for the determination of any contravention of the Act. To date this part of the Act has not as yet come into operation.■