The Market Conduct Rules are both self enforcing, through private legal action, and enforced by the ICCC as the competition regulator, but in both cases through judicial action.
While there may be an expectation by persons/businesses that it is the ICCC’s responsibility to be the sole enforcer of the ICCC Act, that is not so. The ICCC Act deals with anti-competitive commercial arrangements and the protection of commercial interests, so it is entirely appropriate that persons/business organisations which have their rights adversely affected can and should take their own action to protect those rights. The ICCC will always have limited resources, but even if it had unlimited resources, it would still not be able to investigate and pursue through the Courts, all breaches of the ICCC Act.
In broad terms, the following maximum penalties are provided under the ICCC Act for a breach of the Market Conduct Rules;
• The ICCC may take proceedings in the National Court seeking pecuniary penalties, which can range up to K10, 000,000 for each contravention. These very large penalties reflect the serious nature of illegal commercial behaviour, and also recognise both the great harm which can be caused and the great profits which can be made by some who engage in such illegal activities;
• The ICCC may also apply for an injunction to restrain unlawful conduct and when applying for an interim injunction, the ICCC cannot be required to give an undertaking as to damages;
• The ICCC may apply for an order for divestiture of assets which had been illegally acquired, in contravention of section 69;
• The ICCC armoury can apply to the Court for an order preventing a particular person, without the leave of the Court, from being a director or promoter, or being in any way associated with the management of a body corporate. Such banning orders may apply for up to five years;
• The ICCC Act also includes rights of private action to redress loss or damage suffered as a result of a contravention of the ICCC Act, in recognition that such contraventions may have serious commercial consequences for competitors or potential competitors, or for suppliers or customers. Persons/businesses are all able to take their own legal action to protect themselves. Private litigants may seek injunctions for contravention of all of the Market Conduct Rules except section 69, anti-competitive business acquisitions, where injunction may only be sought by the ICCC.
Persons/businesses who suffer loss or damage may also seek damages to recover that loss, through private legal action. As with other actions for damages, the applicant would need to establish the liability of the respondent for the contravention, and then prove the causation and quantum of the loss or damage.
In cases where remedies sought are not sufficient or appropriate, the ICCC may seek other orders from the Court, which provides a flexible range of remedies to redress a wrong brought about by a contravention of the ICCC Act.