A/HRC/13/33 generally seeks to protect the end consumers, and not suppliers squeezed by buyers. Competition law should, however, also constitute a check against excessive buyer power, and not only against seller power.40 The South African Competition Act 1988 illustrates the potential of competition law thus reconceived, since this legislation has been relied upon, for instance, to launch prosecutions against dairy processors for colluding to fix prices in a way that is detrimental to suppliers.41 Third, the use of competition law to address abuses of dominant position or cartels in global supply chains may require the application of competition law to foreign companies. But while the extraterritorial application of competition rules is common when anti-competitive behaviour affects consumer welfare in the State concerned, it is not customary when it affects producers in that State seeking to have access to export markets and unable to do so on reasonably advantageous terms because of excessive concentration of buyer power. For concentration in global food chains to be effectively combated, States where suppliers are based should extend the reach of their competition law to foreign buyers whose abuses affect national sellers, developing regional responses if they are concerned about being vulnerable as a small economy; and States where consumers are affected should accept responsibility for addressing such abuses, which may restrict consumer choice by allowing buyers to become the gatekeepers to their markets. If necessary, States should cooperate through arrangements allowing suppliers in one country to complain about abuse of dominant positions by traders or supermarkets from another country. 36. States could also seek to identify and prohibit a series of practices which are particularly detrimental to suppliers. A number of abusive practices have been documented in this regard.42 For instance, a dominant buyer may demand a discount on the market price from suppliers that reflects the savings made by the seller due to increased production, or it may retrospectively adjust the terms of supply. In its Groceries Market Investigation of 2008, the United Kingdom Competition Commission stated that of the 52 practices it identified in the previous Investigation of 2000, 26 were concerned with “practices that have the potential to create uncertainty for suppliers regarding their revenues or costs as a result of the transfer of excessive risks or unexpected costs to suppliers”.43 Certain practices could be prohibited as they constitute an undue exercise of buyer power. The UK Supermarket Code of Practice (SCOP) could serve as a source of inspiration in this regard. Among the requirements of SCOP are: a clear definition of the terms of business between 40 41 42 43 14 Stewart, J. Clarke and S. Joekes, Competition Law in Action: Experiences from Developing Countries (International Development and Research Centre, Ottawa, 2007), pp. 26–41. The OECD Guidelines for Multinational Enterprises refer to the fact that enterprises should refrain from sharing or dividing markets by allocating suppliers (IX, 1). Complaint referred by the South African Competition Commission to the Competition Tribunal in South Africa, against Clover Industries Ltd and others, on 7 December 2006. The case is currently pending in the Competition Tribunal. The South African Competition Act 1998 provides its purpose to be to “promote and maintain competition in the Republic in order … (c) to provide employment and advance the social and economic welfare of South Africans … (e) to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the economy; and (f) to promote a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons (ch. 1, sect. 2)”. ActionAid, Who Pays? How British Supermarkets are keeping Women Workers in Poverty, available at http://www.actionaid.org.uk/1486/who_pays_campaign.html. See also Collateral Damage. How Price Wars between UK Supermarkets Helped to Destroy Livelihoods in the Banana and Pineapple Supply Chains, Banana Link, 2006 (describing how price pressures from United Kingdom retailers have forced banana producers to cut wages, replace permanent labourers with temporary contract workers and suppress trade union rights). Competition Commission, The Supply of Groceries in the UK. Market Investigation (2008), para. 9.51, pp. 166–167. GE.09-17776