Canada: 2010 A Year in Review - Antitrust/Competition & Marketing

Last Updated: February 23 2011

By Anthony Baldanza, Mark Magro, Douglas New, Huy Do, Leslie Milton, Antonio DiDomenico, Paul Martin and Laura Cooper

INTRODUCTION

Although 2010 lacked the drama of the previous year (which, among other things, witnessed major changes to Canada's competition legislation), as we discuss in this bulletin, there were a number of highly significant developments during 2010, particularly on the enforcement front. Below you will find discussions of enforcement and policy developments during the year, including the successful negotiation by the Commissioner of Competition ("Commissioner"), Melanie Aitken, of large fines in a number of international price fixing cartels, and the initiation of two major cases before the Competition Tribunal under the abuse of dominance and price maintenance provisions of the Competition Act. These developments were followed early in 2011 by the Commissioner's challenge of the merger between CCS Corporation and Complete Environmental Inc. This latter development is notable on a number of accounts including the fact that the Commissioner is seeking, among other things, dissolution of the transaction: sellers beware! And, of course, under the Investment Canada Act we saw the now famous disallowance of BHP Billiton's ("BHP") proposed acquisition of Potash Corp.

MERGERS

New Merger Policy and Guidance Documents

In October 2010, the Competition Bureau ("Bureau") released the following documents to update previous guidance pertaining to procedural matters for merger review: Fees and Service Standards Policy for Mergers and Merger-Related Matters;1Fees and Service Standards Handbook for Mergers and Merger-Related Matters2; and Procedures Guide for Notifiable Transactions and Advance Ruling Certificates under the Competition Act3. Most notably, the documents set out the Bureau's new non-statutory complexity designations and service standard periods (i.e. the maximum amount of time in which the Bureau strives to make a substantive decision with respect to a proposed merger). Generally, the service standard period commences the day a complete filing is received by the Bureau, provided the Bureau has sufficient information to assign a complexity designation. The "non-complex" classification and its service standard period of 14 days remains unchanged. The previous "complex" and "very complex" classifications, with service standard periods of 10 weeks and 5 months, respectively, have been replaced by a single "complex" classification, which has a service standard period of 45 days, or where a supplementary information request ("SIR") is issued, 30 days from the day the SIR is complied with.

Although the service standard periods have decreased for transactions that would have previously been classified "complex" or "very complex" (i.e. reduced from 10 weeks and five months, respectively), in its guidance documents and consistent with past practice, the Bureau retains discretion with respect to its determination of when sufficient information has been received to enable it to make a complexity designation and consequently commence a service standard period – it is not uncommon for the Bureau to ask for information that is additional to the information provided in an initial filing before communicating a complexity designation. It remains to be seen whether the shorter service standard periods will actually result in the review of complex mergers in less time than was the case in the past.

Amended Notifiable Transactions Regulations come into Force

The amended Notifiable Transactions Regulations came into force on February 2, 2010. Amendments to the regulations were necessary following the amendments to the pre-merger notification provisions of the Competition Act in March 2009, which, among other things, replaced the "short form" and "long form" notification information requirements with a single notification form. Notably, one of the requirements in the regulations is that a notification must include studies, surveys, analyses and reports prepared or received by an officer or director of the notifying party for the purposes of assessing the proposed transaction. This requirement is similar to item 4(c) of the U.S. Hart-Scott-Rodino Notification and Report Form. 

Merger Enforcement

In 2010, the Bureau secured consent agreements in respect of the following mergers:

  • acquisition of Alcon, Inc. by Novartis AG (involved the divestiture of assets and associated licences relating to certain ophthalmic products);
  • merger between Teva Pharmaceutical Industries Ltd. and the Merckle Group (carrying on business as ratiopharm (sic)) (involved the divestiture of assets and associated licences relating to certain pain-relief drugs);
  • merger between IESI-BFC Ltd. and Waste Service Inc. (involved the divestiture of commercial waste collection assets); and
  • merger between Ticketmaster Entertainment, Inc. and Live Nation, Inc. (involved the divestiture of a Ticketmaster subsidiary, licensing of Ticketmaster's ticketing software to a competitor, and an agreement by Ticketmaster to refrain from retaliating against venue owners who use competing ticketing or promotional services).

Also, in June 2010, after roughly 18 months of investigation, the Bureau and the U.S. Federal Trade Commission ("FTC") completed their examination of the March 2008 acquisition of AH Marks Holding Limited by Nufarm Limited. The investigation was commenced some time after the transaction had closed. The transaction was also examined by the U.K. Office of Fair Trading and the Australian Competition & Consumer Commission. Working in cooperation with the FTC, the Bureau concluded that a separate remedy for Canada was not necessary; instead, to resolve competition concerns in Canada, the Bureau relied on commitments made to it by Nufarm and a consent decree Nufarm had with the FTC. The remedies obtained by the FTC required Nufarm to sell rights and assets associated with two herbicides to competitors and restructure supply agreements with two other companies to allow them to fully compete in respect of certain herbicides.

Late-breaking News

Just prior to going to press, the Bureau filed a Notice of Application with the Competition Tribunal in respect of CCS Corporation's acquisition of Complete Environmental Inc., alleging that the transaction is likely to prevent competition in the disposal of hazardous waste produced at oil and gas fields in North-eastern British Columbia. Noteworthy aspects of the matter include:

  • The fact that the transaction was not notifiable: the vast majority of the Bureau's enforcement pertains to notifiable transactions. This is a reminder that the Competition Act is relevant to non-notifiable mergers. 
  • The Bureau is seeking, among other things, dissolution of the transaction. This is a reminder that the risk to sellers in respect of completed mergers is not merely theoretical.
  • The Bureau did not seek a s. 100 (pre-closing) injunction but rather accepted a hold-separate undertaking, even though it was introduced to the transaction prior to closing. The Bureau generally refuses to permit closing into a hold-separate. The Bureau's decision not to pursue a s. 100 injunction may have been based on concerns about the strength of its case for an injunction having regard to the decision in the Labatt-Lakeport merger and given that the merging parties had offered a hold-separate. 

Revisiting Merger Enforcement Guidelines

In September, the Bureau announced that it would hold consultations with the public to obtain input on whether its 2004 Merger Enforcement Guidelines ("MEGs") should be revised, having regard to legal and economic developments since the 2004 MEGs and the recent publication of revised Horizontal Merger Guidelines by antitrust authorities in the United States. The Bureau asked for comments by December 31, 2010. A Discussion Paper for the consultations can be found on the Bureau's website.

Pre-Merger Notification Size-of-Transaction Threshold Increased

Pre-merger notification under the Competition Act is required where both size-of-parties and size-of-transaction thresholds are exceeded. The size-of-parties threshold is exceeded where the parties, including their respective affiliates, together have assets in Canada or gross revenues from sales in, from or into Canada that exceed $400 million. The size-of-transaction threshold varies with the type of transaction involved (e.g. acquisition of assets, acquisition of shares, amalgamation, etc.), but generally includes a monetary threshold in terms of the gross book value of assets in Canada or the value of gross revenues from sales in or from Canada generated from those assets. The size-of-transaction threshold for 2011 is $73 million (up from $70 million for 2010).

INVESTMENT CANADA ACT

BHP/Potash

On November 3, 2010, the Canadian Minister of Industry announced that he was unable to approve BHP's proposed acquisition of Potash Corp. on the basis that BHP had not adequately demonstrated that the investment would be of "net benefit to Canada" as required by the Investment Canada Act. While BHP was given an additional 30 days to submit further representations and undertakings in an attempt to persuade the Minister to change his mind, BHP instead elected to withdraw its bid for Potash Corp. Because of BHP's decision, the Minister was no longer legally obligated to issue reasons for his decision although, at the time of his announcement, he had stated that he intended to do so.

The BHP/Potash decision does not appear to herald a change to the Canadian government's generally pro-foreign investment policy. This is only the second publicly announced blocking of an investment under the Investment Canada Act since it came into force in 1985. Regardless as to whether the Minister's decision was motivated, as some columnists have suggested, by political expediency or was simply, as the Minister indicated, the result of BHP's inability to meet the "net benefit to Canada" test, it seems clear that, in certain unique circumstances, obtaining Investment Canada Act clearance can be a material condition to successfully closing a transaction. Because of this, foreign investors proposing acquisitions of Canadian businesses should, early on in the acquisition process, identify any sensitivity, political or otherwise, that might impact on their ability to obtain the required clearance and then consider how they intend to demonstrate "net benefit to Canada" as required by the Investment Canada Act.

U.S. Steel/Stelco

The Minister of Industry's 2009 Federal Court application to obtain an order to remedy the alleged failure by U.S. Steel to comply with certain undertakings that it had given in 2007 in connection with its acquisition of Stelco Inc. continues to move slowly through the judicial process. U.S. Steel's constitutional challenge concerning the validity of sections 39 and 40 of the Investment Canada Act was unsuccessful. U.S. Steel then moved to appeal the decision to grant intervener status to a union representing Stelco employees and a prospective purchaser of the Stelco facility. This appeal was dismissed in December 2010. Everything to date suggests that a quick resolution to this legal dispute is unlikely. In the meantime, foreign investors would be wise to pay closer attention to the substance of the undertakings that they are submitting in support of applications for approval under the Investment Canada Act by properly conditioning those undertakings to take into consideration events beyond their control that could frustrate or delay performance of those undertakings.

Amazon.com, Apple and Canadian Heritage Policy Review

Following on the heels of his April 2010 decision under the Investment Canada Act to permit Amazon.com to open a "fulfillment centre" warehouse in Canada, the Minister of Canadian Heritage and Official Languages (who is responsible under the Investment Canada Act for reviewing foreign investments in the cultural industry sector) announced that he was also undertaking a review of existing foreign investment policies and programs, most of which have been in place for many years. The review will, in part, seek to determine whether the existing book publishing policy, most recently revised in 1992, is to continue or to be revised with a view to providing healthy competition in the book publishing, distribution and retail sectors of the industry and to contribute to the broader government objective of insuring that Canadian cultural content is created and accessible in Canada and abroad. Given the Minister's December 2010 approval of an investment proposal by Apple Canada to establish iBookstore Canada, it would be reasonable to expect that some relaxation in the foreign investment cultural policy will come out of this review.

WTO Investor Threshold Increased

The determination of whether an investment that is covered by the Investment Canada Act is subject to Ministerial review as opposed to being merely subject to notification (which can be filed up to 30-days following implementation of the investment) depends on whether an applicable monetary threshold is exceeded, based on the gross book value of assets of the Canadian business. The highest threshold that may apply is the threshold for WTO investors, which is adjusted annually to reflect changes in GDP. Lower thresholds apply if the investor is not a WTO investor or if the Canadian business being acquired involves a cultural business. The WTO investor threshold for 2011 is $312 million, up from the 2010 threshold of $299 million.

CARTELS AND OTHER CRIMINAL PROHIBITIONS

Cases

2010 saw a number of charges laid and convictions through guilty pleas, including the following:

  • Criminal charges were laid against 20 individuals and three companies accused of fixing the retail price of gasoline in an alleged domestic cartel in various cities and towns in the Province of Quebec.
  • Criminal charges were laid against eight companies and five individuals accused of rigging bids for private sector ventilation contracts for residential highrise buildings in the Montreal area.
  • Panasonic Corporation and Embraco North America Inc. pleaded guilty, with fines totaling $3 million, for fixing the price of hermetic refrigeration compressors sold in Canada.
  • Solvay Chemicals Inc. pleaded guilty and was fined $2.5 million for its role in fixing the price of hydrogen peroxide sold in Canada.
  • Cargolux Airlines International S.A. pleaded guilty and was fined $2.5 million for its role in an air cargo cartel affecting Canada. Cargolux's penalty brings the total fines in the Bureau's air cargo investigation to more than $17 million. In 2009, Air France, KLM, Martinair, Qantas, and British Airways each pleaded guilty to fixing air cargo surcharges for shipments on certain routes from Canada.
  • Tassimco Technologies Canada Inc. pleaded guilty to a charge of bid-rigging for a contract to provide traffic signals to the City of Quebec.

Akzo Nobel

The European Court of Justice released an important decision, Akzo Nobel4, confirming that communications between in-house counsel and their internal clients are not protected under European law by legal professional privilege, otherwise known in Canada as solicitor-client privilege. Akzo Nobel has global implications with respect to how legal advice is sought and received in the area of antitrust/competition law. Companies, in conjunction with their in-house and external lawyers, need to carefully structure their global legal communications in order to maximize the application of privilege. 

Policy Developments

New Bureau guidance included the following:

  • The Commissioner and the Director of Public Prosecutions signed a Memorandum of Understanding5, which sets out the guiding principles of the relationship between the Bureau and the Public Prosecution Service of Canada and outlines each organization's respective roles and responsibilities at the investigative and prosecution stages of a case (May 14, 2010).
  • The Bureau released a revised bulletin on Corporate Compliance Programs6, which describes the Bureau's approach to programs designed to ensure compliance with the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act. (September 27, 2010).
  • The Bureau released its final Leniency Program bulletin7, together with an FAQ document providing specific information on particular questions arising under the program (September 29, 2010).

Dual-Track for Agreements Among Competitors Comes into Force

The Bill C-10 amendments to the Competition Act that establish a dual-track (criminal/civil) approach to agreements between competitors came into force on March 12, 2010. Cartel-type agreements that fix prices, allocate markets and/or restrict output will be prosecuted under a criminal per se provision, while other agreements between competitors (e.g. legitimate joint ventures or strategic alliances) that are likely to substantially prevent or lessen competition may be reviewed by the Competition Tribunal under a civil provision on an application of the Commissioner. The Bill C-10 amendments also established an ancillary restraints defence, and incorporate by reference the common law regulated conduct defence to the per se cartel provision.

ABUSE OF DOMINANCE AND OTHER REVIEWABLE PRACTICES

The Commissioner filed two applications with the Competition Tribunal in 2010 for relief under the civil restrictive trade practices provisions of the Competition Act. This represents a substantial increase in enforcement action by the Bureau under the restrictive trade practices provisions (although both applications followed lengthy investigations) and demonstrates a willingness by the Commissioner to pursue complex cases involving challenging issues that are unaddressed by the existence jurisprudence.

In February 2010, following a three-year investigation, the Commissioner initiated a proceeding against the Canadian Real Estate Association ("CREA") under the abuse of dominance provision (section 79). The Commissioner alleged that by adopting and enforcing certain rules restricting access to the multiple listing service (MLS) system and trademarks, CREA had, through its members, lessened or prevented competition substantially in the market for residential real estate services in Canada. The Commissioner took issue with the minimum service requirements imposed on all brokers as a condition of access to the MLS system and trademarks, including the prohibition against offering listing-only ("Mere Posting") services. The proceeding was concluded by a registered consent agreement filed with the Competition Tribunal on October 25, 2010. Under the Consent Agreement, which has a term of 10 years, CREA has agreed not to adopt, maintain or enforce any rules that prevent members from providing or offering to provide "Mere Posting" services or that discriminate against members that offer such services. CREA has also agreed not to license MLS trademarks to any real estate board member that adopts or enforces rules that are inconsistent with the requirements of the consent agreement. The case reconfirms the Bureau's willingness to challenge rules restricting access to proprietary networks, whether or not protected by intellectual property rights.

At the end of 2010, the Commissioner filed an application under the new civil resale price maintenance provision (section 76) seeking to strike down Visa and MasterCard rules that prevent merchants from imposing a surcharge on credit card payments or discriminate between customers based on the credit card submitted for payment, and that require merchants to honour all Visa and MasterCard cards, including cards with higher fees.  The Bureau alleges that these rules result in higher prices for consumers, as merchants are forced to pass on higher Visa and MasterCard fees than would otherwise prevail.  The application follows an investigation launched in April 2009 in response to complaints filed by merchants and their associations. Interestingly, although the investigation was originally pursued under section 79 (abuse of dominance), the application is based solely on price maintenance. This may be because of the lower competitive impact threshold under the price maintenance provision (which requires an adverse effect on competition rather than substantial lessening or prevention of competition), as well as the fact that joint dominance need not be established.

Also of note was the Bureau's announcement in February 2010 that it would not consent to a variance of the Interac consent order to permit Interac to restructure as a for-profit association, although it would be willing to consider other changes to Interac's structure to provide it with greater flexibility to respond to competitive entry.  According to the Bureau's press release, the decision was based on: Interac's continued dominance; the effectiveness of the not-for-profit restriction in preventing potentially anti-competitive conduct; and the existence of alternative measures that would allow Interac to remain competitive without a for-profit structure.  The Commissioner's rejection of a for-profit structure is at odds with the usual premise that market-based profit-maximization is the preferred market structure.

The Commissioner also published in 2010 a revised "Regulated" Conduct bulletin8.  The revised bulletin addresses the new criminal and civil conspiracy provisions that came into force in March 2010.

MARKETING AND ADVERTISING

The Bureau has continued to challenge Canadian advertising practices that it considers to contravene the Competition Act. In 2010 the Bureau took action:

  • in respect of a telecommunications company to stop what the Bureau viewed as misleading advertising with respect to claims asserting the superior performance of its discount cell phone and text services over those provided by new entrant competitors;
  • in respect of a distributor regarding representations made in the sale and promotion of hot tubs and spas which conveyed, in the view of the Bureau, the impression that the products and/or their insulation were eligible for certification by the ENERGY STAR Program;
  • in respect of two different retailers in connection with their issuance of savings cards on the sale of merchandise, for the failure, in the Bureau's view, to adequately disclose conditions to redeem such savings cards; and
  • resulting in 450,000 textile articles being re–labelled and over 250 web-pages corrected to ensure that textile articles derived from bamboo are accurately labelled and advertised. 

CLASS ACTIONS AND OTHER LITIGATION

Private Actions for Damages

In 2010, courts continued to exhibit a fondness for expanding the availability of civil remedies to plaintiffs in competition-related litigation.  As with the developments in the previous year, this was most notable in the class action certification area.

Competition Class Action Certification

In Irving Paper Ltd., et al. v. Atofina Chemicals, et al.9, leave to appeal was denied in a 2009 decision that certified a class of direct and indirect purchasers of hydrogen peroxide in Canada. Although leave to appeal was denied, the court disagreed with the certification judge's decision on a number of points relating to the assessment of expert opinion evidence tendered on these types of issues relating to evidence of common impact and the methodology for assessing damages, but nevertheless concluded that there was no reason to doubt the correctness of the order of the lower court granting certification. The "vigorous analysis" that the defendants had urged upon the court was rejected. The court found that the certification judge is not required to engage in any merits analysis of the evidence including the expert evidence. Rather, the expert evidence must demonstrate a "viable methodology" for proving loss on a class-wide basis.

The same month as the decision in Irving Paper, the Supreme Court of Canada dismissed an application for leave to appeal in Pro-Sys Consultants Ltd. v. Infineon Technologies AG10.  In Pro-Sys, the Court of Appeal reversed a lower court decision which had refused to certify a class of direct and indirect purchasers of DRAM products. In reasoning similar to the Ontario court in Irving Paper, the court of appeal found that only a minimum evidentiary basis was necessary to establish harm on a class-wide basis and that only a "plausible" methodology needs to be presented by expert opinion evidence at that stage.

The Irving Paper and Pro-Sys decisions have served to substantially lower the threshold for the acceptance by Canadian courts of class action treatment for actions involving competition law violations.  For example, in Quizno's Canada Restaurant Corporation v. 2038724 Ontario Ltd.11, the plaintiff alleged that franchisees were charged non-competitive prices for supplies that they were obliged to pay pursuant to their franchise agreements. The Ontario Court of Appeal overturned the decision of the lower court which had accepted the defendant's claims that the action lacked a workable method for calculating what the franchisees would have paid in the absence of any competition related offence. The Court of Appeal reasoned that only a demonstration of a "reasonable likelihood" that damages could be proven on an aggregate basis was necessary to attain class certification status.  Similar outcomes favourable to plaintiffs were made in Pro-Sys v. Microsoft12 and Sun-Ripe Products Ltd. v. Archer Daniels Midland Company13.

Misleading Representation Claims

The results for plaintiffs were decidedly mixed in respect of allegations of misleading representation contrary to section 52 of the Competition Act.  In Bell Aliant v. Rogers Communications Inc.14, the New Brunswick Court of the Queen's Bench granted Bell Aliant an injunction relating to various claims by the defendant respecting its internet service being, among other things, the "fastest and most reliable speed". The court held there is a serious issue to be tried as to whether the defendant's representations were false and misleading and contrary to section 52 of the Competition Act

In contrast, in Singer v. Schering-Plough Canada Inc.15, the court refused to certify the proposed class action against sunscreen manufacturers who were accused of false advertising and labelling contrary to section 52 of the Competition Act. The court determined that there were many evidentiary issues that had not been addressed by the plaintiff notwithstanding that the threshold for certification in Ontario is notably not a high one. In this action, it was alleged that the defendants were misrepresenting that their products provide equal protection against harmful UVA and UVB rays of the sun. It was alleged that the packaging, labelling and advertising of the sunscreen products were false and misleading. As the court noted, to make out a claim for a civil remedy pursuant to the Competition Act, a plaintiff must show a breach of section 52 and loss or damage suffered as a result of that breach. In Singer, the court determined that the plaintiff had failed to make out a causal connection between the breach and the alleged damages suffered by the plaintiff.  It held that a consumer cannot recover damages, in the abstract, by merely proving that a manufacturer made a false and misleading representation to the public.

Footnotes

1 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03299.html .

2 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03295.html .

3 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03302.html .

4 C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, September 14, 2010 ("Akzo Nobel")

5 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03227.html .

6 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03280.html .

7 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03288.html .

8 Competition Bureau, online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03273.html .

9 2010 CarswellOnt 3898

10 2010 CarswellBC 1361

11 2010 ONCA 266

12 2010 BCSC 285

13 2010 BCSC 922

14 2010 NBQB 166

15 [2010] O.J. No. 113

www.fasken.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Affleck Greene McMurtry LLP
Davies Ward Phillips & Vineberg
Blake, Cassels & Graydon LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Affleck Greene McMurtry LLP
Davies Ward Phillips & Vineberg
Blake, Cassels & Graydon LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions