summarise:

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

The Commission's case against the respondent banks relies on the principles established in the Teams Relocations decision, specifically focusing on three criteria to demonstrate a single overarching conspiracy: a common anti-competitive objective, each firm's intentional contribution to that objective, and the awareness or reasonable foreseeability of other firms' actions.

The referral affidavit claims that the banks aimed to manipulate and distort competition in USD/ZAR currency trading, potentially through price-fixing or market division. Evidence of collusion is found in the frequent communication among traders from different banks, who coordinated trading activities, shared information, and developed joint strategies.

Notably, the affidavit highlights extensive communication patterns between traders, the establishment of permanent chatrooms on the Bloomberg messaging platform, and unusual market behaviors from 2007 to 2013. These behaviors included consistent pricing across banks and a lack of market volatility.

The Commission argues that sufficient allegations exist to prove the banks' participation in the conspiracy, either through specific trader involvement in chatrooms or through trading behaviors that furthered the conspiracy's goals. Two significant chatrooms—"Old Gits" and "ZAR"—with members from multiple banks, are identified as the main platforms for this conspiratorial conduct. The Commission believes that the connections demonstrated through trader interactions in these chatrooms provide enough evidence to substantiate the claim of an overarching conspiracy among the respondent banks.