summarise:

Question

124] Significantly, these parties did not appeal the finding that the Tribunal had
personal jurisdiction over this case. The case against these respondents was
therefore based on the failure to establish subject matter jurisdiction on the part of the
Commission. The case of fourth respondent was that the Commission was required
to plead facts to establish that the cause of action, being a participant in the SOC, was
based on business carried on by fourth respondent’s Johannesburg branch or that the
collusive conduct was attributable to its appointment as an authorized dealer in South
Africa.
[125] In relation to the fourth respondent, the Commission pleaded that Mr Akshay
Aiyer and Mr Paul Simister were the two individuals whose conduct was evidence of
participation by the fourth respondent in the SOC. However, at no point is there any
allegations that either Mr Aiyer or Mr Simister worked for the fourth respondent’s South
African branch and exercised the powers of an authorized dealer within South Africa.
Nor is there any evidence which attribute their conduct to the fourth respondent in
respect of participation in the SOC. In summary, the Commission did not plead facts
to establish that the cause of action arose out of a business carried on with the fourth
respondent’s Johannesburg branch or that the collusive conduct was attributable to its
appointments and authorized deal in South Africa.
[126] By contrast to establish jurisdiction over the third respondent a peregrinus there
is a need to plead facts which illustrate both the existence of personal and subject
matter jurisdiction.[127] It is clear that Mr Aiyer and Mr Simister were employed by third respondent. Mr
Aiyer was convicted in the US District Court for the Southern District of New York for
conspiring to fix prices and rig business in Central and Eastern European, Middle
Eastern and African currencies. Thus, the Commission should have had significant
information about his participation in the SOC. Nonetheless, there was a plethora of
evidence provided in the referral affidavit about the participation; particularly of Aiyer
in various chatrooms particularly in the ZAR chatroom. It is so that a number of these
engagements were with traders who were employed by peregrinus banks. For
example on 10 April 2012 Aiyer participated with Mr Duncan Howes of Absa in an
implicated chatroom during which he was provided with information by Howes on a
proposed bid spread. There is a further reference to a chat on 10 April 2012, where
Howes and Aiyer discussed bid offer spreads. There are also references to
participation with a key figure in the entire chain of events, being Mr Jason Katz in
particular on March 2012.
[128] The regularity in which Mr Aiyer participated in implicated chatrooms (albeit that
Mr Simister does not appear to have been referred to on more than one occasion)
provides, at least, a prima facie basis for the justification that through the role in
particular of Aiyer, the third respondent participated in the SOC as pleaded and that it
has a case, at least to answer. The same however cannot be said of fourth
respondent.

Answer 1

The parties involved did not challenge the Tribunal's personal jurisdiction but focused on the lack of subject matter jurisdiction by the Commission regarding the fourth respondent. This respondent contended that the Commission failed to present facts establishing that its involvement in a collusive conduct was linked to its Johannesburg branch or its role as an authorized dealer in South Africa. Specifically, the Commission cited two individuals, Akshay Aiyer and Paul Simister, as evidence of the fourth respondent's participation in the alleged collusion, yet did not demonstrate that they worked for the Johannesburg branch or were acting on its behalf.

In contrast, for the third respondent, the Commission was able to establish both personal and subject matter jurisdiction. Aiyer, employed by the third respondent, was convicted in the U.S. for price-fixing, and there was ample evidence of his active participation in chatrooms related to the alleged collusion, especially with other traders. His frequent involvement provides a prima facie basis that suggests the third respondent participated in the alleged collusive conduct, whereas the same cannot be established for the fourth respondent.