Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company and Others

The Competition Commission referred a complaint against 28 local and foreign banks, alleging that from approximately September 2007 to at least September 2013 they colluded in a single overarching conspiracy to manipulate the USD/ZAR foreign exchange rate. The alleged conduct included price fixing and market allocation through coordinated trading behaviour and communications, particularly via Bloomberg chatrooms used by traders employed by the banks. The Commission contended that traders acted as active or passive participants in these chatrooms, sharing information and coordinating conduct that distorted competitive conditions in the foreign exchange market, with foreseeable, direct, immediate and substantial effects within South Africa. The litigation followed a long procedural history involving exceptions, jurisdictional challenges (especially concerning foreign peregrini banks), a 2019 Competition Tribunal decision, and a 2020 Competition Appeal Court order granting the Commission a final opportunity to file a legally coherent referral affidavit confined to a single overarching conspiracy.

The final outcome and operative order of the appeal are not available from the provided judgment text, as the extract ends before the Court’s concluding findings and order.

This case is significant for South African competition law because it addresses the limits of cartel enforcement against foreign firms, the development of personal and subject matter jurisdiction under section 3(1) of the Competition Act, and the adoption and adaptation of the ‘single overarching conspiracy’ doctrine in South African jurisprudence. It also underscores judicial concern with balancing robust cartel enforcement against regulatory overreach, and clarifies the pleading standards required of the Competition Commission in complex, multi-party cartel cases.