Ethical Implications of Trade Silvio Meli Senior Magistrate silvio.meli@gov.mt President Commission for Fair Trading Malta Competitiveness Strategies for Small States Islands and Small States Institute University of Malta 2Oth April, 2010
I. Layout of Presentation General Layout I. Layout of Presentation II. III. IV. Defining the Terms Justice Ethical Trading V. Competition Law VI. Conclusion
I. Layout of Presentation contd. Itemized Layout
I. Layout of Presentation contd. Itemized Layout I. Layout of Presentation II. Defining the Terms Trade o o o o o o o Ethics Virtues Values Justice Market Exchange Barter Money Stock Exchange Financial Markets Market Prices
I. Layout of Presentation contd. Itemized Layout III. Justice Value o o Types o o In General In Particular Commutative Distributive Law
I. Layout of Presentation contd. Itemized Layout IV. Ethical Trading Ethical Trading o o Objectives Implication Benefits Effects Social Responsibility Factor o o o o o o On the Market On the Workforce On the Environment On the Community Human rights Protection of the Environment Transparency Factor o o Bribery and Corruption Fighting Corruption
I. Layout of Presentation contd. Itemized Layout V. Competition Law Subject Matter Economic Activity Prohibited Agreements o o o Effect Agreements Include Types of Prohibited Agreements Horizontal Price-Fixing Horizontal Market Sharing Cartels Collusive Tendering Information Sharing Collective Exclusionary Agreements De Minimis Rule
I. Layout of Presentation contd. Itemized Layout VI. Abuse of Dominance o Aim o Dominance o Abuse o Exploitation o Requisites o Concept o Types of Abuse o Presumption of Dominance o Unfair Purchase or Selling Price o Market Power o Types of Markets Product Market Geographic Market Temporal Market Conclusion
II. Defining the Terms
II. Defining the Terms contd. Trade o A mechanism that usually operates within a market. o Involves the voluntary exchange of goods, services and information. o Originally it was carried out through barter. Later money was introduced as a means of exchange. o Later still, stock exchanges were devised. o Trade was greatly simplified and promoted. o Gave raise to the specific product or financial markets. o Market prices started to emerge.
II. Defining the Terms contd. Market o A jurisdictional limit where goods, services and information are traded or exchanged. o May vary in: Size. Range. Product. Geographical scale.
II. Defining the Terms contd. Exchange o Usually takes place through money transactions. o Therefore, Price is central. o Profit Motive is very often essential. o Participants involved are usually: Buyers. Sellers. Entrepreneurs. Consumers.
II. Defining the Terms contd. Barter o The direct exchange of goods and services for corresponding material substitutes. o Took place in the earlier stages of economic activity. o When money was developed, barter declined.
II. Defining the Terms contd. Money o Accepted as a form of payment for equivalent item bought or sold. o Developed as: a medium of exchange. a unit of account. o Value depended on its being declared legal tender.
II. Defining the Terms contd. Financial Market o Provides trading facilities for traders and stock brokers. o Provides facilities for the issue and redemption of securities as well as other financial instruments and capital events including the payment of dividends. o Is a mechanism that allows people to buy and sell, (trade), at a price that reflects the market price in: Financial securities, (such as stocks and bonds). Commodities, (such as precious metals). Fungible items of value at low transaction costs and at prices o Securities that are traded on a stock exchange include: Shares issued by companies. Investment products. Bonds.
II. Defining the Terms contd. Market Price o Is the economic price for which a good, service, or information is offered in the market. o May be determined by: Product and Geographic market
II. Defining the Terms contd. Ethics o Ethos: character. o Seeks to Address questions about: Morality Value Judgements Study the concepts involved in practical reasoning. o Studies what is Good Right Duty Virtue Justice Bad Wrong Obligation Value Fairness
II. Defining the Terms contd. Virtues o Is an analysis of human rightness. o Is the value mankind gives to human behaviour: A habitual disposition. Inherent in the human will rather than in the intellect. o Is the conformity of one s life and conduct to moral/ethical principles. o Consists in discovering and adopting the right characteristic disposition of the will towards the ends that reason prescribes for human actions i.e. that they are: Just. Courageous. Moderate.
II. Defining the Terms contd. Values o Is taken into account in decision-making. o One should be inclined to take values into consideration to influence choice. o They act as guides to assist in directing one s actions. o May be: Subjective: as personal choices. Objective: the requirements of rationality guide and correct personal choices.
II. Defining the Terms contd. Justice o Cardinal Values Prudence. Justice. Fortitude. Temperance. o One of the greatest discoveries in the history of mankind s self-understanding. o First seen in Plato s Symposium. When Agathon takes his turn at making a speech in praise of love. Was host at that famous banquet. Obviously sprung from earlier speculative thinking as no special reason is given for this approach.
III. Justice
III. Justice contd. Value o The constant and enduring will to render to others what is their due. o Is directed to the common good. o Is the most important moral virtue. Always in relation to others. Inherent in one s will rather than in one s intellect. Subjective: depends on one s will. Objective: seeks the good of other human beings.
III. Justice contd. o In General Justice in general, is a moral virtue in general. The goodness of justice is the goodness of every virtue. All moral virtues are directed to the common good. Justice is directed to the common good. Laws of the political community prescribe the moral virtues of the citizen. o In Particular Directs human beings in their relations, (with other human beings; animals; environment; future generations), with regard to particular goods. Involves: External actions. External things
III. Justice contd. Types Commutative: o The duties of individuals and groups to other individuals and groups. o The notion of exchange. Distributive: o The duties of the community to ensure that individuals and groups receive a fair share of the community s goods. o This should be proportionate to their: Contribution to the community. Needs. GoM1
Slide 24 GoM1 Ghandi:" reduce your wants to satisfy your needs". Government of Malta, 4/4/2010
III. Justice contd. Law o An order of reason. o For the common good. o By one with authority. o Promulgated.
IV. Ethical Trading
IV. Ethical Trading contd. Ethical Trading o Objectives Go beyond the strictly economic. Consider the wider implications of business. Are becoming increasingly important. o Implication Business acquires a social connotation. One therefore looks beyond the strictly economic. Decisions become socially relevant. Lacking such animus causes social harm.
IV. Ethical Trading contd. Benefits o Makes the enterprise more competitive. o Promotes the advantage of the: Undertaking. Consumer. Competitiveness.
IV. Ethical Trading contd. Effects o Builds sales. o Customers learn to choose to buy on more than strictly financial factors. o Attract investment. o Staff loyalty and o Motivation o Trust is enhanced through transparency. o Boost revenue. o Save money. increase o Open business to new ideas. o Go beyond the minimum legal obligations.
IV. Ethical Trading contd. Social Responsibility Factor o On the Market: Promotion of the product. From where and How How the product is sold. o On the Workforce: Wages paid. Conditions of work. Equal opportunities policy. o On the Environment: Emissions and Waste one obtains supplies. policy.
IV. Ethical Trading contd. o On the Community Good Neighbour policy. What one puts back into the community. o Human Rights Secure the basic human rights in one s relationship with suppliers. o Protection of the Environment Is translated as implementing Sustainable Development Policies. Has now even emerged as a moral obligation. Includes the attempt to repair damage already done. Involves: Design Processes: replace toxic substances with less harmful ones. Energy Consumption: replace equipment with energy efficient machinery and by using of renewable resources:
IV. Ethical Trading contd. Transparency Factor o Bribery and Corruption Create uneven trading conditions. Here the goal-post is constantly being changed to suit the powers that be. Produce a disincentive to trade. Damage the economic system. Foreign investment will not be forthcoming. Only unreliable investment protagonists will be attracted.
IV. Ethical Trading contd. o Fighting Corruption It is necessary to maintain a high standard of business integrity. Identify risk areas. A much publicized anti-corruption and anti-bribery policy is necessary. The violation of such norms are to be thoroughly investigated and severely disciplined. Accurate financial records are to be kept. Detailed procedure to be followed during business transactions. The prohibition of offering, giving and accepting of gifts or hospitality. The prohibition of donations to political parties. Donations, if allowed, are at least to be disclosed and publicized. Whistle-Blower s Protection is to be legislatively secured.
V. Competition Law
V. Competition Law contd. Subject Matter o Undertaking: any person whether an individual, a body corporate or unincorporate or any other entity, pursuing an economic activity, and includes a group of undertakings. o E.C.J. Hofner and Elser vs. Macrotron 1991: the concept of an undertaking encompasses every entity engaged in an economic activity regardless of the legal status of the entity and the way in which it is financed. Economic Activity o A broad general term. o Profit-Making motive is not necessary. o NGOs, Government Departments and Agencies are subject to competition review. o Commission vs. Italy 1998: any activity consisting in the offering of goods and services on the market.
V. Competition Law contd. Prohibited Agreements
V. Competition Law contd. Prohibited Agreements Prohibited Agreements o Article 5 of Chapter 379 is modeled on Article 101, (formerly 81), of the Treaty of the European Union. o Include all anti-competitive cooperation between firms. o When the parties in any way express their joint intention to conduct themselves on the market in a specific way. o Direct contact is not necessary. o Involves any: Agreement Decision or Concerted Practice o Having the: Object or Effect Preventing Restricting Distorting between undertakings or associations of undertakings Competition
V. Competition Law contd. Prohibited Agreements o Effect Null and Unenforceable o Agreements Include ipso iure Directly or indirectly fix purchase or selling price or other trading condition. Limit or control production, markets, technical development or investment. Share of markets or of sources of supply. Impose dissimilar conditions to equivalent transactions to parties outside the agreements creating a competitive disadvantage. Subject the conclusion of contracts to the acceptance of supplementary obligations which have no connection with the subject of such contracts.
V. Competition Law contd. Prohibited Agreements o Types of Prohibited Agreements Horizontal Price-Fixing Equivalent to theft. Involves discounts and rebates. Notify party of prices one intends to charge. Adopt identical cost-accounting methods. Horizontal Market Sharing Agreement on the apportionment of: Geographic Product markets. Customer
V. Competition Law contd. Prohibited Agreements Cartels Undertakings agree to limit production. Effect: Prices tend to rise. Examples: Quota restrictions. Monopolies. Collusive Tendering Collaboration in the tendering process. Agree on submitting equivalent prices. Rotating beneficiaries who submit the lowest tender.
V. Competition Law contd. Prohibited Agreements Information Sharing Agreements Acquire an accurate reading of circumstances. Share relevant geographic product market statistics. Information exchange: Of Little Concern Of Major Concern General statistical information Levels of demand/supply. New technologies available. Confidential data. Individual price policies. Investment projects. Individual outputs.
V. Competition Law contd. Prohibited Agreements Collective Exclusionary Agreements Like cartels. Aim at driving competitors out of the market. Impede competitors from entering the market. Examples: Exclusive dealing with a preferred undertaking. Suppliers boycott a particular distributor as he is outside the cartel. De Minimis Rule When the market share is less than 10%. Agreement is unlikely to restrict competition. Is a iuris tantum presumption. GoM2
Slide 42 GoM2 Not iuris et de iure Government of Malta, 4/6/2010
V. Competition Law contd. Prohibited Agreements
V. Competition Law contd. Abuse of Dominance Article 9 of Chapter 379 is modeled on Article 102, (formerly 82), of the Treaty of the European Union. Aim o To regulate unilateral behaviour of undertakings having a dominant position. o Want to eliminate competitors. o Object or Effect of action must be anti-competitive. Dominance o Per se is not prohibited. o Only abuse is. o Shakespeare: O, It is excellent To have a giant s strength: but it is tyrannous GoM3 To use it like a giant.
Slide 44 GoM3 Measure for Measure, Act II, Scene 2. Government of Malta, 4/6/2010
V. Competition Law contd. Abuse of Dominance
Abuse V. Competition Law contd. Abuse of Dominance o Is always bad and condemnable. o One is cutting down his price to a level where he makes a loss. o Aim: to eliminate rivals. o Involves: Corrupt Practices. Cartels. Unfair Prices. Limitation of Production. Exploitation o Is a legitimate use of the situation. o Actually increases competition.
V. Competition Law contd. Abuse of Dominance Requisites o Dominance must be in a market. o There must be an abuse. o Activity in question must have an anti-competitive Object or Effect one of them is sufficient. o Even if they are all in different markets. Concept o Economic strength enabling firm to prevent effective competition. o Attains the power to behave to an appreciable extent, independently of competitors, suppliers, customers and ultimately, of its consumers, (United Brands vs. Commission 1976). o If one is competing on merits and success is objectively justified, then there is no problem.
V. Competition Law contd. Abuse of Dominance Types of Abuse o Directly or indirectly impose an excessive or unfair purchase or selling price or other unfair trading condition. o Charge prices below the average variable cost of a product to drive rivals out of the market. o Limit production, markets or technical development to the prejudice of consumers. o Refuse to supply goods and services to eliminate rivals. o Apply dissimilar conditions to equivalent transactions with different trading parties imposing a competitive disadvantage. o Make contracts subject to acceptance of supplementary obligations which have no connection to such contracts.
V. Competition Law contd. Abuse of Dominance Presumption of Dominance o Malta: 40% or the relative market. o E.C.J.:AKZO Case: 50%. Unfair Purchase or Selling Price o Price charged for the product. o Percentage increase in the price over the long/short term. o Relationship between the price and the cost of the product. o Period of time for which price was changed. o Economic value of the product. o Importance of product to consumers. o Riske associated with bringing the product to the market. o Expected changes in the market. o Price charged by similar undertakings in analogous markets.
V. Competition Law contd. Abuse of Dominance Market Power o The definition of market power is a Factual Legal and Economic analysis Types of Markets o Product Market Legal test is that of interchangeability. See if goods or services are in the same market. See if they are substitutable. Substitutability Demand side consumer s perspective. Supply side SSNIP Test.
V. Competition Law contd. Abuse of Dominance o Geographic Market Proper definition of objective conditions is essential. Must be properly analyzed. Determine the proper confines of the issue. o Temporal Market Another important element to consider. Markets may vary From time to time. From season to season.
VI. Conclusion
VI. Conclusion All this financial and economic change initiated in 1994 in Malta s bid to become a member of the European Union. Competition Law conceptually placed justice, (as fairness), in a deserving pivotal position in all commercial activity. It perfectly fits in with the general ethical behavioural limits expected in this constantly evolving domain. Justice is restored to its rightful station. It is in the benefit of: o Entrepreneur. o Consumer. o Employee. o The Economy as a whole. FAIR COMPETITION LAW is the only law that proclaims the value of JUSTICE in its very title. Hopefully, we who operate so intimately with it, will live up to its excellent qualities.
Ethical Implications of Trade Thank You Silvio Meli