paraphrase:

Question

Relying on the decision in Teams Relocations, supra, the Commission based
its entire case on the three requirements which were necessary to prima facie
establish a single overarching conspiracy, namely a common anti-competitive
objective, each firm’s intentional contribution by its own conduct to the common
objectives pursued by all the participants and that each firm was either aware of the
actual conduct planned or put into effect by other undertakings in pursuit of the same
objectives or it could reasonably have foreseen the consequence it was prepared to
take the risk.
To show the presence of these requirements, the referral affidavit states that
the respondent banks:
‘Pursued a single anti-competitive economic objective namely the manipulation and
distortion of normal competitive conditions in the trading of USD/ZAR currency pair;
either by a direct or indirect fixing of prices or the division of markets.’
[70] The referral affidavit suggests that “general and consistent terms of the
conspiracy” were to be found in the respondent banks’ traders participating actively or
passively in frequent and regular engagement and contact with one or more traders
employed by or representing competing respondent banks when engaged in trading
of the USD/ZAR currency pair.
71] Through this communication and conduct, competing traders either offered or
provided assistance to their competitors by way of the coordination of trading activities,
requested and accepted assistance from competing traders by means of the
coordination of trading activities, offered and provided information to competing
traders, requested and accepted information from competing traders and reached
understandings on trading strategies and ensured the coordination of trading activity
in order to assist of be assisted by competing traders. In this way, they colluded in
respect of the bid-office spread for certain volumes on the relevant currency, the
coordination of trading strategies and trading activities and the treatment of certain
customers who purchased or sold the Rand.
[72] The referral affidavit then continues:
‘The Commission does not know the date on which the single overarching conspiracy
between the respondent banks ceased to operate, or if it has indeed ceased to operate.
The existence of the single overarching conspiracy, its terms and objective can be
inferred from the following facts:
[73] The referral affidavit then sets out in some detail the conduct and
communication which created and perpetuated the conspiracy. In a section of this
Referral Affidavit entitled “Conduct Implementing the Agreement”, the following
appears:
1.1. The extensive level of communication and contact between competing
traders when engaged in trading of the USD/ZAR currency pair;
1.2. The lengthy period over which the frequent and regular communication and
contact between competing traders persisted;
1.3. The continuity in the mode of communication between competing traders
when engaged in trading of the USD/ZAR currency pair;
1.4. The existence of numerous permanent chatrooms on the Bloomberg
instant messaging platform whose participants were competing traders
engaged in the trading of the USD/ZAR currency pair; and
1.5. The frequent presence of competing traders in the Bloomberg chatrooms;
2. The unusual behavior of the markets during 2007 to 2013 set out in the section of
this referral Affidavit entitled “The Effect of the Conduct”. In particular:
2.1. Consistent prices over time and across banks and an absence of random
fluctuations and volatility in the foreign exchange market prices over time
and across banks;
2.2. The use of “round figures” for quotes;
2.3. Lack of randomness and volatility in the spot exchange rate; and
2.4. The consistent spread of 0.0500 and 0.1000 charged by South African local
banks (except for RMB).’
[74] Counsel for the Commission submitted that the Commission’s referral had
contained sufficient allegations to establish the existence of the SOC’s anticompetitive
objects and effects. He accepted that it was necessary for the referral
affidavit to contain sufficient allegations to show each of the respondent bank’s
participation in this conspiracy. In counsel’s view, this intentional contribution to the
conspiracy was established in one of two ways. Firstly there were factual allegations
to demonstrate there was either a trader employed by the respondent bank who joined
and became a member or entered a chatroom in which conduct that implemented the
terms or furthered the objects of the conspiracy took place. Secondly the Commission
pointed to factual allegations that the relevant respondent banks with its employees or
representatives engaged in conduct including trading behavior that implemented the
terms of or furthered the objective of the conspiracy.
[75] The referral alleges that there were two central implicated chatrooms in the
conspiracy being:
1. The Old Gits chatroom, the longest running and most prolific of all the
implicated chatrooms on the Bloomberg platform which had between 10 and
15 members from 10 or more different banks.
2. The ZAR chatroom which had 3 and later 4 members from 4 different banks
[76] These two chatrooms were employed by multiple traders from multiple
competing banks which, in the view of the Commission, was the site of engagement
and conduct implementing the terms and furthering the objectives of the SOC.
[77] Much of the evidence which was placed before the Tribunal was designed to
show the conduct of various members of one or both of these chatrooms. The relationship between traders who participated in these chatrooms was summarized by
the Commission in the following diagram, presented to the Tribunal:
This diagram seeks to highlight the links between various traders and various
states and the respective respondent banks. The essential case therefore brought by
the Commission in its referral affidavit is that there was sufficient connection between
traders employed by the respondent banks through these chatrooms which provides
sufficient evidence for each of the bank’s conduct fell within the scope of a single
overarching conspiracy.

Answer 1

Drawing upon the ruling in Teams Relocations, the Commission structured its entire argument around three criteria necessary to establish a prima facie case of a single overarching conspiracy. These criteria include the existence of a shared anti-competitive goal, the intentional actions of each firm contributing to the collective aim, and the understanding that each firm was either aware of or could have reasonably anticipated the actions taken by other firms to achieve this shared objective, along with the acceptance of the associated risks.

To demonstrate these criteria, the referral affidavit indicates that the respondent banks were engaged in a unified anti-competitive economic objective: manipulating and disrupting typical competitive conditions in trading the USD/ZAR currency pair, either through direct or indirect price-fixing or market division.

The affidavit further claims that “general and consistent terms of the conspiracy” emerged from the interactions between traders from the respondent banks, who participated either directly or indirectly in regular and consistent communication concerning USD/ZAR currency pair transactions.

Through this interaction, traders either assisted their competitors by coordinating trades, sought and accepted help from one another, exchanged information, and reached agreements on trading strategies, ultimately collaborating on bid-office spreads for specific volumes, coordinating trading strategies, and managing interactions with certain customers buying or selling the Rand.

The affidavit goes on to state that the Commission is unaware of when the overarching conspiracy among the banks ended or if it continues to exist. Nonetheless, the existence of this conspiracy, along with its terms and objectives, can be inferred from the following evidence:

1. The significant level of communication and contact between competing traders focused on trading the USD/ZAR currency pair.
2. The long duration of such regular interactions.
3. The consistency in how these traders communicated while trading the USD/ZAR currency pair.
4. The presence of multiple permanent chatrooms on the Bloomberg instant messaging platform involving competing traders engaged in USD/ZAR currency pair transactions.
5. The frequent participation of competing traders in these chatrooms.

Additionally, the affidavit details unusual market behaviors observed from 2007 to 2013, including:

1. Stable pricing across banks and a lack of random fluctuations and volatility in foreign exchange market prices.
2. The prevalence of "round figures" in quotes.
3. Minimal randomness and volatility in the spot exchange rate.
4. A consistent spread of 0.0500 and 0.1000 charged by South African banks, excluding RMB.

Counsel for the Commission argued that the referral contained adequate allegations to demonstrate the existence of the anti-competitive objectives and effects of the conspiracy. He acknowledged the need for the affidavit to clearly depict each respondent bank’s participation in this conspiracy. According to him, this participation could be shown in two ways: either through evidence of employees from respondent banks engaging in chatrooms where conspiratorial conduct occurred or through evidence of trading behaviors by these banks that supported the conspiracy's objectives.

The referral identifies two key chatrooms involved in the conspiracy:

1. The Old Gits chatroom, which was the most active and long-standing, with 10 to 15 members from at least 10 different banks.
2. The ZAR chatroom, originally with 3 members and later expanding to 4 members from 4 different banks.

These chatrooms facilitated interactions among traders from various competing banks, serving as venues for the conduct and operations that supported the conspiracy's objectives.

A significant portion of the evidence presented to the Tribunal aimed to illustrate the actions of various members within one or both chatrooms. The Commission summarized the relationships among participating traders and their respective banks through a diagram, illustrating the connections within the conspiracy. The Commission’s primary argument in the referral affidavit is that substantial evidence exists linking the traders from the respondent banks in these chatrooms, indicating that their conduct fell within the framework of a single overarching conspiracy.