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Do we need an international competition agreement?

Dr Martyn TaylorPartnermartyn.taylor@nortonrose.com

July 2012

INTERNATIONAL COMPETITION LAW

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Overview

1. Jurisdictional limits to domestic competition law

2. Application of foreign competition laws

3. Problems regulating trans-national behaviour

4. International agreements as a solution

5. Are competition laws sufficiently converged for an agreement?

6. Can competition law be included in international trade agreements?

Dr Martyn TaylorPartner +61 2 9330 8056martyn.taylor@nortonrose.com

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Jurisdictional limits to domestic competition law

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• Standard territorial jurisdiction: The Competition & Consumer Act 2010 (Cth) applies on a territorial basis to persons located in Australia.

• The Federal Court can apply the Act on an extra-territorial basis to regulate persons engaging in conduct outside Australia if satisfied it has subject matter jurisdiction…

• Limited extra-territorial jurisdiction: Section 5 gives the Act limited extra-territorial application to regulate certain persons that engage in conduct outside Australian territorial borders, namely:

– bodies corporate incorporated or “carrying on business”* within Australia;

– Australian citizens;

– persons ordinarily resident in Australia; and

– for ss 47 (exclusive dealing) and 48 (resale price maintenance) only, foreign persons supplying to persons within Australia.

• Australia therefore has a more limited form of extra-territoriality than other nations. Foreign conduct needs to have more than a mere ‘effect’ on an Australian market (e.g., the “effects test” applied by the US).

Jurisdictional limits of Competition & Consumer Act

* A question of fact, but section 21 of the Corporations Act gives some guidance (eg isolated transactions and litigation are insufficient).

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Standard territorial application of Act to “conduct within Australia” may provide jurisdiction over foreign-located entities engaging in that conduct.

Example: Hoffman-La Roche (vitamins international cartel; full Federal Court):

• Class action for damages in Australia due to inflated vitamin prices in Australian domestic market. Damages were sought by Australian plaintiffs against the US parent company as well as the Australian subsidiary.

• US parent was not “carrying on business” in Australia and was not an Australian body corporate, so s5 did not give the Act extended extra-territorial jurisdiction in relation to conduct occurring outside Australia.

• However, the court held that regular directions communicated by US parent to Australian subsidiary were still sufficient to constitute “conduct in Australia”.

• Accordingly, the US parent was found to be a party to a contravention of the Act occurring in Australia and hence was potentially exposed to liability for the price fixing behaviour originating outside Australia.

Courts have construed this jurisdiction expansively

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• The relevant “conduct” is the making or giving effect to a provision. If this conduct occurs outside Australia, only Australian entities and citizens involved in that conduct are liable.

• However, liability only arises if the contracts/arrangements have the purpose, effect or likely effect of SLC in a “market in Australia”.

Example:

• While playing golf in Dubai, the CEO of an Australian firm agrees with the CEOs of several foreign firms to “carve up” the global market. The foreign firms agree not to enter the Australian market.

• The United Arab Emirates does not yet have a competition law.

• However, the Australian firm may be liable under s45 if market entry by the foreign firms would otherwise have occurred, hence the arrangement lead to an SLC in Australian domestic market.

• The foreign firms are not liable. However, Australian directors of those firms, or Australians involved in those firms, may be liable.

Section 45 – concerted conduct

Market division may also contravene the cartel provisions leading to per se liability (and potential criminal liability in Australia), regardless of the effect on competition.

Sections 47 and 48 have express application to foreign firms supplying to persons in Australia, as an exception to this general rule.

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Acquisitions inside Australia are regulated under basic territorial principles.

Jurisdictional limitations arise where acquisitions occur outside Australia:

• Acquisition must have likely effect of SLC in a “market in Australia”:

– In practice, acquirer and target must be actual or potential competitors in an Australian market (i.e., competitive overlap).

• The acquirer must be incorporated, or carrying on business, in Australia (the prohibited act under s50 is “acquisition”, so primary liability is on the acquirer).

• If an offshore acquirer is acting as agent, nominee or trustee for a principal, the domicile of the principal is also relevant – known as an ‘indirect acquisition’.

• At the extreme, an offshore acquisition may be regulated if it has an SLC in Australia and is made by an offshore acquirer that acts as the acquisition agent for an Australian entity (next slide).

Section 50 – mergers & acquisitions

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Federal Court: Section 50 did not apply:

Helenus acquisition vehicle was not incorporated, or carrying on business, in Australia.

No “indirect acquisition” as Helenus not acting as an agent for an Australian acquirer.

AIS and Tubemakers were not “holding companies” as shareholding in Helenus <50%.

Australian Steel case (BHP uses offshore acquisition vehicle to acquire domestic competitor):

Indirect acquisitions and the need for section 50A

AIS

BHP

Steel & Tube

Tubemakers

NZ Steel

AUS

NZ

Competition

Helenus

Acquisition in NZ (approved by NZ Commerce Commission)

100%

31%

49.9%

49.9%25%100%

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Section 50A applies to offshore acquisitions that fall outside section 50:

• Loophole: Merger between two foreign parents with Australian subsidiaries. Parents are not “carrying on business” in Australia. Subsidiaries are not acting as acquisition agents for parents. Merger would SLC in Australian market.

• Any person can apply to Tribunal within 12 months of acquisition for a declaration that the acquisition would have the effect or likely effect of SLC in a market in Australia. The Tribunal must consider whether public benefits outweigh the detriments. If a declaration is given, the acquirer must cease to carry on business in Australia within 6 months.

Section 50A – regulation of offshore acquisitions

Offshore TargetAcquirer

Aussie Sub

Offshore

Australia

“Controlling interest”

Acquisition of “controlling interest”

SLCAussie Sub

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• In addition to section 5, certain specific sections of the Act have extended jurisdictional application, notably section 46A (misuse of market power).

• Section 46A was enacted in the context of the Australia-NZ Closer Economic Relations Trade Agreement to address concerns arising from the repeal of anti-dumping laws as between Australia and NZ.

• The concern was that large firms in each country could engage in predatory pricing practices when exporting into the other market.

• Section 46A gives extended application to section 46:

– Corporation that has SMP in a trans-Tasman market must not take advantage of that power with a proscribed anti-competitive purpose.

– SMP is aggregated over related bodies corporate in Australia and NZ.

Section 46A – misuse of market power

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• The extra-territorial application of the Act under section 5 cannot be pleaded in a private action for damages without Ministerial consent.

• Similarly, a private entity is not entitled to seek private remedial orders under section 87 of the Act without Ministerial consent.

• Ministerial consent must be given unless:

– it is not in the national interest; or

– the offshore conduct was required or authorised in the foreign jurisdiction.

• Ministerial consent is not required for injunction proceedings.

• Ministerial consent is not required in relation to actions for damages under section 46A (trans-Tasman market power) or section 50A (offshore mergers).

• Consent can be obtained after the action is commenced: Natureland Parks.

Private action for damages

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Application of foreign competition law to domestic

transactions

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Foreign competition laws can apply to domestic Australian conduct in a range of circumstances:

• The Australian conduct has an anti-competitive effect in a foreign market and is subject to “effects test” extra-territoriality:

Example: uranium export cartel arrangement is exempt from application of Act due to section 51(2)(g) but harms United States domestic market, so US courts assert extra-territorial jurisdiction under the “effects test”.

• The Australian conduct involves offshore entities that are subject to extra-territorial competition regulation from their home jurisdictions.

• A merger in Australia involves entities with operations in other countries, requiring merger filings in those other countries (e.g., mandatory pre-notification thresholds may be exceeded).

• The Australian conduct is part of wider global conduct and the wider conduct is subject to competition regulation (e.g., international cartels).

Application of foreign competition laws

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• As a rule of thumb, the more powerful the nation, the greater the extent to which it applies its competition laws extra-territorially.

• US and the EU have the most expansive form of extra-territoriality. While US has been gradually curtailed, EU has been gradually expanding. Both entities use a form of “effects test”.

• “Effects test”:

– Alcoa case (1945) – Judge Learned Hand adopted an “effects test” to justify application of Sherman Act to conduct occurring outside the US that had an adverse impact on US consumers.

– In the period 1950-1980, US courts became the de facto international competition regulators. However, significant jurisdictional conflict resulted.

– Most aggressive instances : Swiss Watch case (1963); investigations by the US DoJ into Australian producer boards in the 1970s; Uranium litigation (1978).

– US eventually enacted “Foreign Trade Antitrust Improvements Act 1982” to curtail.

US “effects test” & other variants

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Foreign competition judgments can be enforced in Australia:

• Foreign Judgments Act 1991 and Foreign Judgment Regulations:

– foreign (monetary) judgments from certain jurisdictions can be registered in court and thereby become directly enforceable.

– 28 jurisdictions are listed, not United States. Mostly commonwealth jurisdictions, plus France, Germany, Italy, Poland, Switzerland and Taiwan.

– Registration can be contested.

• Common law:

– A plaintiff can commence an action in an Australian court and plead a foreign judgment under common law.

– Only a judgment of a foreign court that is judisdictionally competent will be recognised.

– Recognition can be contested.

Enforcement of foreign judgments

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Foreign antitrust judgments can also be blocked or offset:

• Judgment blocking legislation:

– Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth)

– Attorney General can declare that a foreign antitrust judgment is not recognisable or enforceable in Australia if inconsistent with international comity, harmful to Australian commerce and contrary to national interest

• Clawback legislation:

– Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth)

– Australian defendants subject to a foreign judgment executed against their foreign assets can “claw back” their losses against the Australian assets of a judgment creditor from the foreign jurisdiction located in Australia.

Blocking and clawback of foreign judgments

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International competition issues

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1. Globalisation of competition:

– unprecedented levels of global economic integration

– rise of multinationals and foreign direct investment

– modern transactions subsuming multiple territorial spaces.

2. However, domestic competition law is inherently territorial, creating a regulatory disjunction:

– each nation enforces its domestic competition laws with regard to its own national interest… not the collective international interest.

– result… under-regulation and over-regulation

3. The extra-territorial application of competition laws by nations is a solution to under-regulation, but is an imperfect solution.

The fundamental problem…

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• Coverage of domestic laws is incomplete so the conduct is not regulated, or the conduct is regulated but not at globally optimal level.

– Example: Australia exempts a uranium export cartel from its domestic competition laws (s51(2)(g). The cartel increases the price of uranium supplied into the United States domestic market.

• This occurred in 1978 resulting in the famous Uranium litigation…

– US government partly closed the uranium market to foreign producers. The producers retaliated by forming a cartel with foreign government encouragement.

– Westinghouse was a US-based uranium supplier with fixed-price contracts. WH sued the producers based on the extra-territorial application of US antitrust law.

– Foreign producers refused to recognise US jurisdiction. US court awarded $2 billion in damages. WH sought to enforce judgment, including against assets in US.

– Result: Australia and other nations (Canada, UK, South Africa) enacted “blocking” and “clawback” legislation to prevent antitrust discovery, prevent enforcement of foreign antitrust judgements, and to “claw back” against US assets in Australia firm the effect of a judgment against assets in the US.

Under-regulation Competition laws of Nation A

Competition laws of Nation B

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• One or more competition laws imposes a level of regulation above the globally optimal level, including where the competition laws of different jurisdictions overlap.

– Example: United States permits a merger of two US domestic aircraft manufacturers under its domestic competition laws. The European Union blocks the merger and threatens punitive trade sanctions.

• This also happened… the Boeing – McDonnell Douglas merger in 1997:

– Merger approved by US FTC on basis necessary for survival of McD.

– Boeing and McD had sales in the European Union, so required EC approval as they exceeded the monetary thresholds : the merger had a “community dimension”. But the EC refused clearance on the basis it strengthened Boeing’s dominance.

– Significant US-EU tensions resulted. US accused EU of deliberately favouring Airbus. EU threatened punitive taxes of 10% of Boeing’s international revenue. US threatened to retaliate with trade sanctions against Airbus and other EU firms.

– Eventually resolved via a negotiated package of remedial measures including modification of long-term supply contracts, patent sharing arrangements and continued separation of Boeing and McD until 2007.

Over-regulation Competition laws of Nation A

Competition laws of Nation B

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• One or more competition laws overlap leading to inconsistent results and potential jurisdictional conflict. (A more extreme form of over-regulation).

– Example: A first airline commences antitrust proceedings in the United States against a second airline. The second airline obtains an judgement from a British court that injuncts the first airline from continuing its proceedings in the US.

• Again, this happened… the Laker Airlines litigation in 1985:

– Laker was a budget trans-Atlantic airline that went bust due to alleged anti-competitive predatory and collusive pricing by British Airways and other airlines.

– Laker commenced action in the US. British Airways obtain an anti-suit injunction against Laker in the UK. Laker obtained an anti-suit injunction against the anti-suit injunction from a US court…

– The British Secretary of State invoked the UK blocking statute to prevent the enforcement of the US judgment in the UK against British Airways. Laker sought judicial review of the decision to invoke the UK blocking statute.

– Ultimately, the House of Lords in the UK ruled in Laker’s favour and deferred to the US courts as the only forum of competent jurisdiction.

System frictions Competition laws of Nation A

Competition laws of Nation B

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• Extra-territoriality is useful where conduct is harmful to a nation and is not adequately regulated in foreign jurisdictions.

• Extra-territoriality is problematic where the conduct is already regulated in a foreign jurisdiction and complies with foreign competition laws. Jurisdictional conflict may result.

– Enforcement may be exceptionally difficult without the co-operation of respective foreign government or competition authority.

– Extra-territoriality is the root cause of system frictions.

• Extra-territoriality is there a part solution to under-regulation, but does not address over-regulation (in fact, it exacerbates the over-regulation problem):

– In circumstances of full extra-territoriality a merger would not proceed unless it provided a net benefit to every nation affected, regardless whether it was welfare-enhancing at an international level.

– Nations remain inherently motivated by their own national interests.

– Example of US ‘effects test’ and the jurisdictional conflicts it created.

Extra-territoriality is an imperfect solution

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International co-operation initiatives as a solution

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Co-operation initiatives

To address the jurisdictional complications created by extra-territoriality, nations commenced entering into bilateral and plurilateral antitrust co-operation agreements:

• A number of generations of bilateral competition agreements, progressively increasing in sophistication over the last 2 decades

• High water mark: US-AU International Antitrust Enforcement Assistance Agreement

• If 120 nations have competition laws, then 7,000 bilaterals are required !

• European Commission Group (1995): “it is difficult to imagine a level playing field if this were to be founded only on a group of inevitable heterogenous bilateral agreements”.

So what about plurilateral agreements or other alternatives ?

• Generally, existing plurilateral initiatives and multilateral initiatives have had clear limitations.

Summary: there is a clear need for a more co-ordinated approach to the application and enforcement of competition laws at the international level

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• Most antitrust co-operation agreements involving Australia have been entered into at the inter-agency level.

– Contemplate co-operation between the ACCC and other competition regulators, principally involving co-operation, consultation, and co-ordination of investigatory and enforcement activities.

– Some sharing of information is also contemplated, but this would not normally include commercially sensitive information.

– Agreement with NZ Commerce Commission also includes a limited “positive comity” mechanism that enables each regulator to formally request the other to commence an investigation into conduct in its country that adversely impacts the national interests of the other.

• Inter-agency agreements have been entered into by the ACCC with: Canada; NZ; United Kingdom; Korea; Fiji; Papua New Guinea; and Taiwan.

• ACCC is also actively participating in initiatives such as the “International Competition Network” with a view to standardising competition laws and procedures between nations and promoting inter-agency co-ordination.

Inter-agency agreements

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In practice, Nation A cannot actually take enforcement action unless it establishes a breach of competition laws in Nation A (i.e., requiring anti-competitive behaviour in the domestic market)

Positive and negative comity obligations

Negative comity Positive comity

1

Nation A

Nation B

Nation A must have regard to the impact of anti-competitive

behaviour on Nation B when making any decisions whether to investigate behaviour

or take any enforcement action

1Nation A

Nation B

Nation B can formally request

Nation A to investigate and

take enforcement action against anti-

competitive behaviour in Nation

A that is harming Nation B’s national

interests

2

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One of the world’s most comprehensive antitrust co-operation agreements is the United States – Australia mutual antitrust enforcement assistance agreement of 1999.

• US International Antitrust Enforcement Assistance Act 1994 (IAEAA) enabled the US Government to enter into reciprocal agreements for the purposes of cross-border competition law enforcement and exchanges of confidential information.

• Given the stringent criteria required for the negotiation of an IAEAA and high level of confidence required for sharing of confidential information, Australia remains the only country to have entered into an IAEAA Agreement with the United States.

• The US-AU agreement contemplates a formal process for:

– reciprocal disclosure, exchange, sharing and discussing of evidence; and

– reciprocal assistance in information gathering;

Australia’s only other inter-governmental antitrust co-operation agreement was also entered into with the United States (in 1982). This contains “negative comity” obligations:

• negative comity – each nation is required to have regard to the interests of the other when enforcing its domestic competition laws;

• the AU-US 1992 agreement also requires each nation to notify the other when they consider that competition law enforcement may affect the other’s national interests.

Inter-governmental agreements

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Inter-governmental initiatives….

• Bilateral initiatives – free trade agreements

– 1998 Protocol to Australia–New Zealand CER Trade Agreement

– Singapore–Australia Free Trade Agreement 2003

• Regional initiatives – APEC and ASEAN FTA

– APEC Competition Principles in Auckland Ministerial Declaration 1999

– Australia NZ ASEAN Free Trade Agreement

• Multilateral initiatives – WTO & UNCTAD

– UNCTAD Code on Restrictive Business Practices 1980

– Singapore WTO Ministerial Declaration 1996 & subsequent Declarations

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How similar are domestic competition laws ?

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Not all nations have competition laws

Nations with generic competition laws

Australia (1906) New Zealand (1908)

Philippines (1932) Japan (1947)

Thailand (1947) S. Korea (1980)

PR China (1980) Taiwan (1991)

Indonesia (1999) PNG (2002)

Singapore (2004) Vietnam (2004

Malaysia (2010) Hong Kong (2012)

Nations without competition laws

Cambodia Burma

North Korea Laos

Brunei

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Differences in quality of competition laws

Lower quality Higher quality

China Australia NZ Japan Philippines Indonesia Thailand TaiwanKorea

Laws are generally of a high quality, but wide differences in quality of application:

Thailand’s Competition Act 1999 looked great on paper but experienced signficant problems in implementation and enforcement:

• Lobbying by business interests against implementation of law.

• Key implementing regulations & guidelines significantly delayed.

• Questionable application during investigations - with initial disappointing results.

• Alleged discriminatory enforcement against foreign firms.

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Convergence of macro principles, not micro content…

• Convergent at macro level: (objectives, methodology & structure)

– Common microeconomic foundation – e.g., “market”, “market power”

– Common methodologies – e.g., market definition, competition analysis

– Common tripartite structure – unilateral & concerted conduct; merger laws

– Common historical precedents and sources – e.g., Sherman Act 1890

• Divergent at micro level: (substantive content & application)

– Per se vs rule of reason – level of complex competition analysis required

– Legal thresholds – e.g., level of market power; extent of predetermination

– Exceptions – e.g., government sector; shipping; agriculture; labour markets

– Administration & enforcement – e.g., remedies; level of judicial involvement

This does suggest any international agreement should be focussed on establishing key principles of competition law or a minimum set of obligations.

Is there a basis for international agreement ?

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Could the WTO provide a vehicle for an international

competition agreement?

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WTO Secretariat (1999):

“The WTO is sometimes described as a “free trade” institution, but that is not entirely accurate. The system does allow tariffs and, in limited circumstances, other forms of protection. More accurately, it is a system of rules dedicated to open, fair and undistorted competition”.

The ITO proposal in 1947 included international competition rules. When the US Congress vetoed the Havana Charter, the GATT 1947 became the de facto instrument:

• 1947-1994: various initiatives sought to bring competition principles into the GATT, resulting in “meet and discuss” obligations but little else

• 1994: WTO created at conclusion of Uruguay Round, incorporating a range of ad hoc competition obligations of limited scope and application (e.g., import monopolies; state trading enterprises; use of intellectual property rights; basic telecoms)

• Singapore Ministerial (1996): WTO Working Group on Trade and Competition Policy

Competition law in the World Trade Organisation

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The key question: can competition law and international trade law be reconciled ?

• Competition perspective on trade law: Competition theory views a “barrier to trade” as a form of structural barrier to market entry created by governmental border regulation. High trade barriers imply reduced import competition.

• Trade perspective on competition law: International trade law only applies to barriers to trade that are governmental in character. Anti-competitive conduct is viewed as a private barrier to trade that may have the same impact as a government barrier to trade by foreclosing market entry by foreign firms.

Answer: market contestability (barriers to trade are a governmental barrier to market entry)

Reconciling trade law and competition law

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• International trade law has struggled to regulate anti-competitive conduct that has the effect of negating agreed trade concessions (e.g., exclusive dealing by domestic firms).

• The key difficulty has been in establishing a causal linkage between the private anti-competitive conduct and a governmental measure.

• Kodak-Fuji case (1996):

– US sought WTO dispute resolution against Japan alleging that the Japanese Government had created an environment conducive to exclusive dealing by Fuji film with its various distributors, thereby foreclosing market entry by Kodak film.

– US pleaded the effect of a range of Japanese administrative measures which had the aggregate effect of tilting the competitive playing field against US firms in Japan, including by promoting vertical integration, restricting the development of larger stores, and limiting the use of advertising and sales promotions

– Accordingly, the measures were not pleaded as de jure (at legal face) discriminatory, but were pleaded as de facto (in factual effect) discriminatory

– Difficulty: these measures were not overtly discriminatory against foreign firms but applied equally to Japanese and US firms. The US failed.

Trade perspectives on competition law

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• A range of governmental trade measures can have adverse effects on competition:

– domestic measures – export cartel policies; industrial policies

– international measures – voluntary export restraints

– commercial activities by governments – state trading; government procurement

• International trade negotiations have focussed on promoting non-discriminatory market access rather than promoting market contestability as a whole. A range of trade-offs and exceptions have been historically tolerated that are detrimental to competition.

• However, as international trade law has evolved (particularly since 1994), the trade law position has become increasingly more consistent with the competition policy position.

– For example, the trade law concept of “like product” has become less literally interpreted and has increasingly adopted the concept of product substitutability from competition law market definition

• However, there still remains scope for the application of international trade law to be applied in the manner least distorting to international competition.

Competition perspectives on trade law

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• Essentially, it is the best of a number of options:

– UN treaty - already been tried, proved ineffective;

– OECD treaty – limited to industrialised nations and OECD focuses on policy;

– stand-alone treaty – less achievable and doesn’t reconcile trade-competition;

• WTO has the benefit of an international enforcement mechanism in the form of the WTO Dispute Settlement Body and the ability to authorise the application of trade sanctions.

• WTO negotiations also permit greater scope for horse-trading, so enable the losing nations to be compensated by gaining nations in a multinational negotiation

• WTO has been historically favoured for international competition rules and has significant international support

• There are significant synergies between international competition theory and international trade theory

• WTO structure is sophisticated and allows for progressive adoption over time.

Why choose the WTO ?

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Unfortunately, not yet… (international negotiations move at a snail’s pace)

• 1996: Singapore Ministerial – competition work programme commences

• 1998: Geneva Ministerial – competition work programme continues but a polarisation of views occurs in line with diverging interests of nations

• 1999: Seattle Ministerial – competition becomes bargaining chip against agriculture (and ultimate walk-out by Least Developed Countries)

• 2001: Doha Ministerial – negotiations on competition policy were agreed to commence at the next Ministerial in the context of a new round of multilateral trade negotiations known as the “Doha Development Round”

• 2003: Cancun Ministerial – competition issues again became a bargaining chip against agriculture…. and another walk-out occurs

• 2005: Hong Kong Ministerial – focussed on salvaging the Doha Development Round and resolving the impasse over agricultural concessions

etc..... !

Is it politically achievable ?

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Conclusions

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1. Clear need for greater international co-ordination. Key issue is that each nation acts in its own domestic self-interest, not the international interest.

2. Bilateral and limited plurilateral initiatives are assisting and will get us some of the way, but not are ultimately likely to be insufficient.

3. A multilateral framework is desirable and there is a sufficient basis for an international competition agreement. Such an agreement could focus on establishing minimum concepts and principles and promoting greater co-operation.

4. Of the various institutional vehicles, the WTO remains the clear winner for a range of reasons.

5. At present, competition law doesn’t have the profile to attract sufficient international support vis a vis competing policy issues, so has been used as a bargaining chip.

6. In the meantime, international trade law is evolving to incorporate competition principles and concepts in a fairly ad hoc manner.

7. Eventually, we may get a formal competition law agreement in the WTO…. but this still seems a long way off.

Conclusions

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Disclaimer

The purpose of this presentation is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Norton Rose LLP, Norton Rose Australia or Norton Rose OR LLP on the points of law discussed. No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any constituent part of Norton Rose Group (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this presentation. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of, as the case may be, Norton Rose LLP or Norton Rose Australia or Norton Rose OR LLP or Norton Rose South Africa (incorporated as Deneys Reitz Inc) or of one of their respective affiliates.