If you had to summarise in colloquial terms the Competition Tribunal’s finding on Wednesday, 12 June 2019 on the Competition Commission’s four-year-old case against more than 20 banks on charges of currency manipulation, it would be this: “Please, for heaven’s sake, get your act together.”
But that’s not what it said. What it said was the following: “…the deficiency in the commission’s pleading was located in its unwillingness to commit itself unequivocally to a particular formulation of its case”. This “caused a lack of focus and consistency throughout the various iterations contained in the referral and subsequent supplementary documents”.
This response was essentially due to the fact that the banks had complained repeatedly and bitterly that the case they were required to answer was not made clear in the commission’s documents. Even on Wednesday, Standard Bank said it “remains unaware of any evidence implicating it in the alleged collusion”.
So, the tribunal has ordered the commission to redraft its referral in 40 days. That in itself is going to be interesting. Then the tribunal has required the commission to “confine its case against the respondent banks to one of a single over-arching conspiracy, providing more detail on such a conspiracy, and limiting the relief sought against those respondent banks without a presence in South Africa to a declaratory order”.
What does that all mean? The commission has had several problems with this case.
The case involves several foreign exchange traders from several banks who somewhere around 2013 were found to have participated in a Bloomberg chat room, discussing margins and bid-offer spreads in several currencies, including the rand. On the face of it, that seems to be pretty bad.
But the commission’s first problem was, in retrospect, that they just assumed the banks would instantly settle after the mere allegation was put them. That wasn’t out of the question because several foreign banks did just that. To date, according to Bloomberg, more than a dozen financial institutions have paid about $11.8-billion in fines and penalties globally, with another $2.3-billion spent to compensate customers and investors.
At the time the case was brought in 2015, the commission – it’s fair to speculate – must have considered it to be a bit of an open and shut affair, which was going to result in a massive payday.
But if that was so, it must have got a shock when all the banks, bar one, decided they intended to fight the case. Two others, including Absa, later pleaded for leniency and will probably get it.
The problem for the commission is that, first, to be fined locally, it must be demonstrated that some harm was caused locally. Second, the banks complained that the commission’s case was brought too late because, after three years, it would normally prescribe. And third, some banks complained they didn’t operate in currency buying and selling within South Africa at all.
The tribunal tried to wind its way around these objections, and at the same time nudge the commission into making a consistent, logical case. But it also didn’t allow any of the main banks off the charge.
The problem for the commission is now not only that it only has 40 days, but it needs to make out, it appears, a much more difficult case. Previously, the commission was relying on specific conversations between two specific people within the chatroom to implicate the banks for which they worked.
But now, the commission must make out a case of a broad and general conspiracy in which the banks participated or at least did not refrain from participating. It has to specify when the actions of each bank started and when they stopped, if they did. And it has to limit its compensation claims against foreign banks not registered in South Africa as banks.
It is in short, lawyer heaven.
The banks involved include Standard Bank, Investec, BOA Merrill Lynch, Credit Suisse, BNP Paribas, JP Morgan Chase, Nomura Internationa, Standard Chartered, Commerzbank, Macquire, HSBC and Barclays Capital. BM