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 (g) Competition law

Angola

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

The IRSE is responsible for ensuring and promoting competition in the power sector, preventing anti-competitive and monopolistic conduct from the sector interveners and for that purpose it may lead enquiries, request information and/or apply sanctions according to the specific case.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions to a project company to compete freely in Angola. One of the basic principles of the power sector is the promotion and guarantee of competition as a way of improving efficiency in the performance of the activities of the power sector.

Guinea

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

There is no special Law or regulation which grants exclusivity rights to a project company

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions for the project to compete freely in the country; this principle is defined by the Law n*L/94/040/CTRN dated on 28th December 1994 related to the regulation of competition and the pricing with Its Decree of application n*D/94/PRG/SGG.

Ivory Coast

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

Rights of exclusivity can be granted to a project company.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

The project company can compete freely in Ivory Coast's jurisdiction. This principle is set out in the Law n*91-999 dated on 27th December 1991 related to competition regulations.

Kenya

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

There are provisions in specific statutes that provide for the enforcement of rights of exclusivity. For instance, the Geothermal Resources Act stipulates new bores may be closed by order of the Minister for Energy if it affects the productivity of existing bores, in the event that the right to exclusivity requires enforcement through the court system it may be difficult to obtain a court order as the legal system in Kenya is notoriously slow.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

KPLC is still the sole distributor of electricity in Kenya, as a result it hinders competition to some extent.

Madagascar

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

Please contact us for further information.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions on the ability of a project to compete freely in the country; this principle is defined by the Competition Code no 2005-020 of 17th October 2005, Chap III, art 11 and 12.

Mali

Please contact us for further information.

Mauritius

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

The Competition Act 2007 contains provisions prohibiting such acts or behaviours likely to have an adverse effect on the competitiveness of the economy or to be detrimental to the interests of consumers.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

Please refer to the answer given above.

Morocco

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

Yes.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

No.

Mozambique

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

As a rule, the law sets out the principle of free competition in the power industry in Mozambique and prevents both monopolistic conveys and cartel activity in connection with tariffs or other charges applicable to consumers. Nevertheless, in certain circumstances, exclusivity rights may be granted on the grounds of the Concession Contract and/or the PPA. In this case, exclusivity rights are enforceable provided that same do not breach mandatory legal provisions.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions on the ability of a project company to compete freely in Mozambique provided that same are granted with the required licenses and comply with the law in force. Indeed, free competition is one of the basic principles of the power sector as a way for promoting investment so as to provide populations higher standards of living and contribute towards poverty’s reduction by enhancing economic development. This is also one of ERAP’s major principles in connection with the Mozambican power sector.

 

Niger

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

There are no special Laws or regulations which grant exclusive rights to a project company.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions on the ability of the project company to compete freely in Niger. This principle is set out in the Ordinance n°92-025 dated on 07th July 1992 related to the regulation of pricing and competition and the liberalisation of the price system.

Nigeria

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

Generally, the rights to generate, distribute or transmit electricity under the authority of a license granted by NERC are granted on a non-exclusive basis. However, the EPSRA provides that the terms and conditions of the grant of a license may include an exclusive right for the duration of the license, for a specific purpose, for a geographic area, or a combination of any of the foregoing.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

Generally, there are presently no antitrust or anti-competition enactments in Nigeria restricting the ability of a project company to compete freely in Nigeria, however there are pending bills presently before the National Assembly which would seek to regulate competition.

Please note also on this issue that a licensee under the EPSRA is generally prohibited, without NERC's prior written consent, from acquiring an interest in the undertaking of other licensees.

Furthermore, a license granted by EPSRA for the generation of electricity must specify the classes of persons to whom the licensee is entitled to sell the power generated provided that a holder of such licence may apply for and secure an amendment to such license (including the terms as to its customers).

The prior approval of the Securities and Exchange Commission (SEC) is required for mergers, acquisitions or combinations of companies in any sector in Nigeria. In deciding whether to approve mergers or not, the SEC would review such merger requests with competition issues in mind.

 


 

South Africa

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

The Competition Act prohibits restrictive horizontal and vertical practices (such as collusive tendering and pricing) and abuse of dominant positions. The fines imposed can be high (up to 10% of the turnover in South Africa). Accordingly, it is advisable to obtain advice on any practices that could be prohibited in terms of the Competition Act.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

See above.

Tanzania

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

Tanzanian competition law is regulated by the Fair Competition Act of 2003 (the "FCA").

The major objects of the FCA are to promote and protect effective competition in trade and commerce, to protect consumers from unfair and misleading market conduct and to provide for other related matters in order to:

  • increase efficiency in the production, distribution and supply of goods and services;
  • promote innovation;
  • maximize the efficient allocation of resources; and
  • protect consumers.

The FCA forbids use of a dominant position in the market if the object or effect of the conduct is to prevent, restrict or distort competition unless the FCA Commission has granted an exemption.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

The market in Tanzania is becoming increasingly liberalised.

Uganda

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

The ERA may and has in the past granted rights of exclusivity to project companies and such rights once granted are enforceable.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions on the ability of a project company to compete freely in the country.

Zambia

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

Yes

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

No

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