BOOKS: DIAWARA Karounga, Éditions Yvon Blais, collection CÉDÉ, 2015, 652 p.

Droit de la concurrence – Aspects théoriques et appliqués, Karounga DIAWARA

*This article is an automatic translation of the original article in French, provided here for your convenience. Read the original article.

Karounga Diawara, a professor at Laval University (Quebec City), is well known to readers of this journal for his excellent columns on Canadian law in the European and Foreign Jurisprudence section. In December 2015, the author published a fascinating book entitled Droit de la concurrence - Aspects théoriques et appliqués. It offers a plunge into the Canadian Competition Act that will obviously be of interest to academics and competition law practitioners in this part of the world. European readers will also find food for thought on their own rules because the book contains substantial developments on issues that are "universal", so to speak, such as the economic theories underlying competition rules, the measurement of market power, and the history of Canadian law, which, it is learned, is one of the first laws to have adopted antitrust legislation - the 1889 Cartel Act preceded the American Sherman Act by one year!

The monograph opens with a section devoted to the foundations of competition law, which begins with a few definitions, before discussing the fundamental notions of the subject. The "relevant market", "market power" and "restrictive effect on competition" are explained in a simple and didactic manner. The European lawyer will find familiar concepts. The chapter entitled "The General Economics of Competition" is of particular interest, as it explains in a very simple and accessible way the main concepts and the main economic doctrines (Harvard, Chicago, post-Chicago...). However, the essential contribution of this part of the work seems to us to lie in the historical developments of Canadian competition law which are the subject of Title 2. From the work of the Wallace Committee in 1888 to the latest legislative developments in the late 2000s, the author presents an interesting overview of the construction of competition law in Canada, which then opens on the objectives of Canadian competition law (efficiency, protection of consumers and SMEs, Canadian participation in world trade). This section concludes with a detailed discussion (which reproduces the essential case law) of the scope of application of Canadian competition law.

The second part of the book is dedicated to "procedural" developments where the implementation of the competition rules is explained. With regard to the administrative aspect, the manual details the role of the Commissioner of Competition, who heads the Competition Bureau, and is responsible for conducting investigations (with extensive means that the book explains in detail) and triggering the enforcement process in Canada by referring cases to the Competition Tribunal or the Director of Public Prosecutions. With respect to the judicial aspect, the handbook deals with the jurisdiction of the Competition Tribunal, "an administrative tribunal, a quasi-judicial body that has jurisdiction over all civil provisions of the law". The functioning of this court is explained. Criminal cases are dealt with by the ordinary courts, seized by the Director of Public Prosecutions. At a time when private actions are developing in Europe, the reader will focus on the question of access to justice for individuals for instructive comparisons, for example on the question of class actions.

The third and final part of the book sets out the substantive law through an important distinction in Canada between practices prohibited per se by the criminal law and reviewable or regulated practices. The former are cartels. The constituent elements of the offence are set out, and procedural developments specific to cartels are present through immunity and leniency programs. Reviewable (or regulated) practices are not automatically sanctioned: their anti-competitive effects must be demonstrated. These include abuse of dominant position (the presentation here represents one of the highlights of the book in our view), anti-competitive mergers, strategic agreements and alliances, exclusivity, tying, market restriction, refusal to sell, price maintenance and refusal to supply on the grounds of low prices, which are covered by special provisions of the competition law.

Mr. Diawara’s textbook is certainly a must-read for anyone interested in Canadian law. But it also has a lot of appeal for any lawyer interested in competition law in general.

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Author

  • University Aix-Marseille

Quotation

David Bosco, Droit de la concurrence – Aspects théoriques et appliqués, Karounga DIAWARA, September 2016, Concurrences Nº 3-2016, Art. N° 80740, p. 218

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