summarise:

Question

The ninth respondent Nomura International PLC
[100] The ninth respondent is a pure peregrinus. The case against the ninth
respondent is based on the identification of Mr Guido Arlan and Mr Darren Dempsey
as the two traders employed or representing ninth respondent in the trading of the
USD/ZAR currency pair. The Commission alleges that the ninth respondent joined
the conspiracy by at least 18 October 2012 when their employee and/or representative
Dempsey was a participant in an implicated chatroom. It is on this date that the
Commission alleges that Mr Dempsey and Mr Howes of ABSA were participants in an
implicated chatroom in which they discussed the bid-office spread for USD/ZAR. The
referral affidavit refers to a chat on 27 May 2010 on the Reuters Trading platform.
Where the ninth respondent together with other banks held the USD/ZAR around the
focal point of 7.5760’.
[101] On 2 March 2012 Mr Arlan was a participant together with traders in an
implicated chatrooms where information was shared about custom quotes. A similar
allegation was made in respect of the discussion on the Reuters Trading Platform in
which ninth respondent together with other banks including ABSA held the USD/ZAR
around the circle point of 7.5760.
[102] The difficulty confronting the Commission with regard to ninth respondent and
its alleged participation is that the entire case of participation in the alleged SOC
reduced to unrelated online chats over a course of six-year period. Tellingly two of these chats occurred before the Commission alleges that ninth respondent joined the
SOC.
[103] The Tribunal also found that Demsey on 17 October 2012 was a participant
with Howes in a chatroom where they discussed ‘bid offer spread for USD/ZAR’.
[104] Unfortunately, the Tribunal referred to the single interaction as ‘chats’. (para
318). That however was the only relevance to Dempsey. This one reference to
Dempsey on its own is so skeletal and vague. It is hardly the evidence needed to
sustain a case of personal jurisdiction.
[105] Hence the case brought against the ninth respondent luminously reveals the
difficulty of the ambitious case that the Commission sought to bring to satisfy the
requirements of SOC. It had to establish in this case that ninth respondent knew or
ought to have known its participation in the alleged conduct formed part of an overall
plan to develop and implement the SOC. It was aware or ought to have been aware
of the essential features of the SOC and intended to contribute to achieving that overall
common objective of SOC or alternatively could reasonably foresee that its conduct
contribute to the pursuit of the common objective.
[106] To return to the requirement to prove an SOC: In HSBC Holding Plc and others
v European Commission T105/17 (24 September 2019 at para 199 the following
important passage relating to a SOC appears:
‘The undertaking may have participated directly in only some of the forms of
anticompetitive conduct comprising the single and continuous infringement, but have
been aware of all the other unlawful conduct planned or put into effect by the other 47
participants in the cartel in pursuit of the same objectives, or could reasonably have
foreseen that conduct and have been prepared to take the risk. In such cases, the
Commission is also entitled to attribute liability to that undertaking in relation to all the
forms of anticompetitive conduct comprising such an infringement and, accordingly, in
relation to the infringement as a whole.’
[107] That the Tribunal in upholding the Commission’s case against ninth respondent
failed to take account of the fact that two of the three material averments against ninth
respondent predated the very date upon which the Commission alleged ninth
respondent joined the SOC is regrettable. That it then failed to consider that the
implication of the remaining allegation as sufficient to establish personal jurisdiction is
equally unfortunate.
[108] In summary, the three instances cited are insufficient to meet the requirements
of a SOC. This is abundantly clear from the paucity of information provided in the
referral affidavit to provide of the necessary evidence to meet the three requirements
to establish that the ninth respondent was a participant which had a common anti
competitive objective, that there was international conduct which contributed to the
SOC and the requisite knowledge of the SOC. That Dempsey is mentioned with
Howes, who provided the Commission with information meant that should there have
been evidence which linked ninth respondent to the South African based SOC, it would
have found its way into the referral affidavit. The silence is instructive.

Answer 1

The ninth respondent, Nomura International PLC, is alleged to have participated in a conspiracy involving the trading of the USD/ZAR currency pair, primarily through traders Mr. Guido Arlan and Mr. Darren Dempsey. The Commission claims that Nomura joined the alleged "single and continuous infringement" (SOC) conspiracy by at least October 18, 2012, when Dempsey was in a chatroom where the bid-office spread for USD/ZAR was discussed. Prior instances from as early as May 2010 and discussions in March 2012 also involved Nomura in relevant chatrooms.

However, the Tribunal found significant challenges in establishing Nomura’s participation in this alleged conspiracy. Notably, two key chats occurred before the Commission's alleged start date for Nomura's involvement, rendering the evidence insufficient. The Tribunal recognized that the evidence supporting Nomura’s involvement was sparse, particularly that only one vague reference to Dempsey was cited, making it difficult to prove personal jurisdiction or actual knowledge of a common anticompetitive objective.

The Tribunal’s conclusions highlight shortcomings in the Commission's case against Nomura, emphasizing that the evidence was not adequate to meet the necessary criteria for proving participation in the SOC. As the referral affidavit provided scant information linking Nomura to the alleged conduct, the overall case against the ninth respondent was deemed weak.