PER / PELJ - Pioneer in peer-reviewed, open access online law publications
Author Simbarashe Tavuyanago
Affiliation >University of Free State, South Africa
Email TavuyanagoS@ufs.ac.za
Date Submitted 31 October 2023
Date Revised 13 May 2024
Date Accepted 13 May 2024
Date Published 10 September 2024
Guest Editor Prof Howard Chitimira
Journal Editor Prof W Erlank
How to cite this contribution
Tavuyanago S "A Commentary on the Jurisdictional Challenges in the Rand-Dollar Exchange Manipulation "Cartel": Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023)" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a17142
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a17142
Abstract
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Cartels are the most egregious of competition law transgressions, because they entail a concerted effort on the part of cartel members to deliberately distort the market through price fixing, bid rigging, market allocation and constraining the supply of goods and services. Despite efforts by national competition authorities in various countries to combat cartelism, cartels have proved to have long tentacles, often extending beyond borders and morphing into "cross-border cartels". This contribution discusses one of the major challenges that cross-border cartels poses to competition authorities, that of prosecutorial and penal jurisdiction. The note focusses on the "banking cartel" that has been and still is the subject of contentious litigation. In March 2023 the Competition Tribunal (the Tribunal) handed down judgment in the matter of the Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023). There were several questions in the matter, including the jurisdiction of the South African competition authorities to investigate and prosecute firms not incorporated or operating in South Africa (pure peregrini). The Competition Commission (the Commission) had initiated proceedings in the Tribunal against a host of banks for alleged cartel conduct, and some of the respondent banks raised objections and exceptions relating to the jurisdiction of the South African competition authorities. The note observes that while national competition authorities may have prosecutorial jurisdiction against cross-border cartels, there is still a challenge in enforcing an order where cartels are non-resident in the country. The contribution also notes potential challenges to cartel enforcement on the African continent in light of the establishment of the African Continental Free Trade Area (AfCFTA). Due to the removal of various trade barriers, there is likely to be a rise in cross-border competition issues, including cross-border mergers and cross-border cartels. The note therefore discusses a pertinent issue, that of jurisdiction, which may well be a challenge within the AfCFTA. |
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Keywords
Cartels; competition authorities; competition law; cooperation; cross-border cartels; African Continental Free Trade Area; jurisdiction.
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1 Introduction
Cartels have been designated as the most egregious of competition law violators because the violations involve a coordinated effort on the part of cartel members to distort the market deliberately – and, in turn, deprive consumers of their welfare.
1
Simbarashe Tavuyanago. LLB LLM (UP) LLD Candidate (UWC). Lecturer and Programme Director (PG Diploma in Labour Law), Department of Mercantile Law, Faculty of Law, University of the Free State. E-mail: TavuyanagoS@ufs.ac.za. ORCiD: https://orcid.org/0000-0002-6756-0884. A version of this paper was presented at the 1st Banking, Competition and Corporate Law Colloquium in July 2023 at the North-West University. Thank you to the organisers of the colloquium, the participants and the reviewers for their valuable feedback on this topic. 1 Kelly et al Principles of Competition Law 85-86; Neuhoff et al Practical Guide to the South African Competition Act 75; Whish and Bailey Competition Law 520-521. 2 Kelly et al Principles of Competition Law 85-93, Whish and Bailey Competition Law 530-547; Motta Competition Policy 138-142. 3 Competition Act 89 of 1998 (hereinafter "the Act" or the Competition Act). 4 Part A of the Act. 5 Section 4(1)(b)(i-iii) of the Act.
A cross-border cartel (CBC) is a cartel that involves multiple members from different countries.
6
6 A cross-border cartel is one where the cartel members are located or based in different countries alternatively, the conduct takes place over multiple jurisdictions, or where the effects of the conduct are felt in more than one country. Cross-border cartels are also referred to as international cartels or transnational cartels. See Horna Fighting Cross-Border Cartels 5-7. 7 Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023) (hereinafter referred to as CC v BOA).
sharing on electronic and other platforms and through various coordination strategies when trading in the USD/ZAR currency pair.
The case is of significance to competition law jurisprudence as, apart from it having all the hallmarks of a scintillating international banking syndicate spectacle, it also highlights the challenges associated with the regulation of CBCs. The alleged conduct of the banks, if proven, would constitute cartel conduct in the form of price fixing and market division, thus violating the Competition Act.
8
8 Competition Act 89 of 1998. 9 CC v BOA paras 6, 13, and 22.
The Tribunal found that it had jurisdiction to prosecute all the alleged cartel members.
10
10 CC v BOA paras 16-19; 281-356, in which the Tribunal dismissed the objections, exceptions and dismissal applications of the various banks; and section C of the Tribunal's order. 11 Special note must be taken of the fact that subsequent to the submission of this contribution, some of the banks approached the Competition Appeal Court (CAC) in Competition Commission of South Africa v Bank of America Merrill Lynch International (215/CAC/APR23) [2024] ZACAC 1 (8 January 2024) (hereinafter referred to as CC v BOA 2024) to appeal the Tribunal's findings. In the appeal, the CAC ruled in favour of the banks, which raised exception to the Tribunal's findings regarding jurisdiction, dismissing the Tribunal's ruling that the Competition Commission (the Commission) had jurisdiction to prosecute 17 banks (see CC v BOA 2024 paras 183-188). Following the CAC's finding, the Commission has approached the Constitutional Court for leave to appeal the CAC's decision. The Commission will appeal the dismissal of its case against 13 of the 17 banks (Pillay 2024 https://www.iol.co.za/news/rand-manipulation-competition-commission-approaches-concourt-to-appeal-banks-price-fixing-order-8b66a202-cb02-4f52-9787-7cb071aae896). Whereas the appeal may yet confirm the Commission's jurisdiction or the CAC's finding, the quintessence of this contribution remains the same: that of highlighting the challenge of first establishing prosecutorial jurisdiction and subsequently enforcing penal jurisdiction. The note will therefore not discuss the CAC's decision bar to mention its implications where relevant.
AfCFTA – making the African market more accessible, but at the same time, more susceptible to the emergence and prevalence of CBCs.
2 Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023)
2.1 Background
The case dealt with exception, objection and dismissal applications from the respondents concerning several cases before the Tribunal. The applications emanated from proceedings initiated by the Commission, which alleged that between 2007 and 2013, at least 28 banks from multiple jurisdictions, including Europe, South Africa, Australia and the USA, had conspired to manipulate the South African Rand through information sharing on electronic and other platforms and through various coordination strategies when trading in the USD/ZAR currency pair.
12
12 CC v BOA para 2. 13 CC v BOA para 3.
2.2 Referral
In February 2017, the Commission referred a complaint against the first 19 respondents for alleged price-fixing and market division in contravention of sections 4(1)(b)(i) and (ii) of the Competition Act.
14
14 CC v BOA para 11. 15 CC v BOA para 13. 16 CC v BOA para 16.
17 Section 34 of the Banks Act 94 of 1990.
2.3 Legal question
The above classification of respondents raised a key legal question: whether the Tribunal had the jurisdiction to prosecute all the respondents jointly. Ancillary to the finding on the question of prosecutorial jurisdiction was the question of penal jurisdiction. If the Tribunal found that it had jurisdiction to prosecute and if it were found that the banks, including foreign banks, were guilty of cartel conduct, did the Tribunal have the power to impose sanctions on those pure peregrini banks as provided by the Competition Act?
2.4 Tribunal's finding
The Tribunal answered the above question by finding that it had subject matter jurisdiction over pure peregrini banks. Still, it lacked the personal jurisdiction to make a finding against them and could only make a declaratory order.
18
18 CC v BOA para 17. 19 Section 3(1) of the Competition Act. 20 Section 26(1) of the Competition Act. 21 Section 27(1)(a) of the Competition Act. 22 Section 28(1)(d) of the Competition Act.
The Tribunal found that while it could not impose penalties on pure peregrini as envisaged by the Act,
23
23 Section 59 of the Competition Act. 24 CC v BOA para 18.
2.5 Peregrini's demur
The pure peregrini banks lodged an appeal in the Competition Appeal Court (CAC) against the Tribunal's decision that it could issue a declaratory order against them, albeit that the order would be limited in effect. They argued that for the reason that the Tribunal had determined that it had no jurisdiction over them, it therefore did not possess the power to issue the declaratory order if the Commission were successful in its section 4(1)(b) case.
25
25 CC v BOA para 22. 26 CC v BOA para 25. 27 CC v BOA para 26.
The CAC also upheld the Commission's appeal and found that the common law on personal jurisdiction applied to section 3(1) of the Act and that the Tribunal could enjoy both personal and subject matter jurisdiction over the pure peregrini, provided that there were adequate connecting factors between the conduct of the foreign peregrini and the suit brought by the Commission to justify the assumption of such jurisdiction.
28
28 CC v BOA para 27. It is worth noting here that central to the establishment of personal jurisdiction was the concept of a single overarching conspiracy (SOC). In the CC v BOA 2024 appeal, CAC was tasked with determining whether the Commission had proved that there was a SOC among the banks, thereby linking them to the alleged cartel conduct and granting the Commission jurisdiction to prosecute them. It was noted that a SOC comprised three elements, to wit "a common anti-competitive objective, being the existence of an overall plan pursing a common economic objective; participation, being each firm's 'intentional' contribution by its own conduct to the common objectives pursued by all the participants; and knowledge, being that the 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 it and that it was prepared to take the risk" (CC v BOA 2024 para 28). The Commission was therefore required to show a common anti-competitive objective, that is an overall plan in which all of the respondent banks participated to pursue a common economic objective. It was required to show that each firm had made an intentional contribution by its own conduct to the common objectives pursued by all of the participants to the SOC. It further was required to show that each respondent bank was aware of the actual conduct planned or put into effect by the other undertakings in pursuit of these objectives; that is to perpetuate a SOC or that each respondent bank could reasonably have foreseen that it participated in the SOC and that it was prepared to take the risk (CC v BOA 2024 para 176). The CAC found that the Commission's reference to occasional participation in a chatroom without any additional evidence and where there was no link to any South African bank was inadequate to show a SOC (CC v BOA 2024 para 185).
allowed the Commission to establish adequate connecting factors between the respondent parties and the jurisdiction of the Tribunal to establish personal jurisdiction in addition to proving the requirements of subject matter jurisdiction on facts which may be set out in the fresh referral affidavit.
29
29 CC v BOA para 28. 30 CC v BOA para 37. 31 CC v BOA Part A (paras 61-105). 32 CC v BOA Part C of the Order (Objection Applications).
3 Discussion of the case
3.1 Determination of jurisdiction
In analysing the submissions regarding jurisdiction or the lack thereof, the Tribunal reiterated the incontrovertible fact that it had jurisdiction over any contravention of the Act concerning prohibited practices, including conduct under section 4(1)(b).
33
33 CC v BOA para 65.
The Tribunal was swift to point out the CAC's decision in ANSAC,
34
34 American Soda Ash Corporation CHC Global (Pty) Ltd v Competition Commission of South Africa (12/CAC/Dec01) [2003] ZACAC 6 (30 October 2003) (hereinafter referred to as ANSAC). 35 CC v BOA para 67.
in restricting the bounds of the effects test, determining that "section 3 envisaged that the Act applied to all economic activity outside South Africa where the conduct complained of had 'direct and foreseeable' substantial consequences in South Africa."
36
36 ANSAC paras 54-58.
While the respondents argued that the Commission's referral fell short of meeting the qualified effects test, the Tribunal found that for the purposes of establishing jurisdiction, the enquiry did not involve a consideration of the positive or negative effects on competition in the regulating country but merely whether there were sufficient jurisdictional links between the conduct and the consequences.
37
37 CC v BOA para 84; see ANSAC para 18. 38 CC v BOA para 87.
Further, and relating to the respondents' submissions that the Commission's referral lacked "connecting factors" to establish extra-territorial jurisdiction, the Tribunal referenced the CAC's development of the common law of personal jurisdiction to section 3(1) to ensure that extra-territorial egregious conduct which might have anti-competitive effects on the South African economy does not escape the reach of the Act.
39
39 CC v BOA para 92. 40 CC v BOA para 102. 41 Constitution of the Republic of South Africa, 1996. 42 Section 27 of the Constitution; for a detailed discussion on the nexus between the Competition Act and the realisation of socio-economic rights see Tavuyanago and Mpofu 2024 JAL paras125-136 43 See ss 2A, 2B, 2BA and 2C of the Competition and Consumer Act, 2010 (Act No 51 of 1974 as amended).
business' which involved acts within the relevant territory that amounted to or were ancillary to, transactions that make up or support the business".
44
44 Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 (22 December 2017) paras 148-150.
Ultimately, determining whether the Commission had proved a prima facie link between conduct and effects to found extra-territorial jurisdiction in section 3(1) of the Act was up to the Tribunal's discretion. This discretion had to be exercised through a balancing of several factors that did not constitute a closed list.
45
45 CC v BOA para 103. 46 CC v BOA paras 221, 226, 287-344 and 356.
The decision to dismiss the respondents' exceptions and objections to the Tribunal's jurisdiction is laudable for two reasons. First, it creates certainty regarding extra-territorial jurisdiction in section 3(1) of the Act. Further, it asserts the competition authorities' attitude to fighting CBCs and the authorities' commitment and refusal to be bullied by "big business" from more developed jurisdictions.
47
47 For the need of young and developing agencies to mount a robust fight against cartels as well as recommendations on how to achieve the same, see Horna 2013 https://www.law.ox.ac.uk/sites/default/files/migrated/david_goliath_-_how_young_competition_agencies_can_succeed_in_fighting_cross-border_cartels_-_cclp_l_45.pdf 8-9.
Perhaps the Tribunal had pre-empted its lack of power in the 2017 finding where it found that it had jurisdiction but only insofar as issuing a declaratory order was concerned.
48
48 CC v BOA paras 17-18.
It is also worth noting that the determination of whether the alleged conduct was in contravention of section 4(1)(b) of the Competition Act, which was the primary purpose of the 2017 referral, is still in abeyance as the authorities have been dealing with exceptions, objections, dismissal applications, appeals and cross-appeals relating to the citation and joinder of respondents. The Tribunal still needs to make a ruling to that effect and may yet be taken on appeal to the CAC and beyond. The delay in dealing with the merits and deciding on the alleged conduct, as well as the potential for future appeals and delays, perhaps proves another arrow in the cartelise quiver – the fact that they can litigate a matter almost in perpetuity. The perverse consequence of this delay and delays of this nature in similar cases is that while all this is ongoing, innocent consumers are the ones that feel the effects of the alleged cartel members' conduct.
3.2 CBCs and the AfCFTA
As indicated in the introductory section, this note does not seek to provide an in-depth discussion of the AfCFTA's competition regime. However, this note is alive to the fact that the challenges faced by the South African competition authorities regarding CBCs may also be faced by the AfCFTA competition authority. It is therefore necessary to highlight how the challenge of jurisdiction may manifest in the AfCFTA. Despite the aspirations of the AfCFTA Agreement,
49
49 The African Continental Free Trade Area, established by the Agreement Establishing the African Continental Free Trade Area. See African Union date unknown https://au.int/en/treaties/agreement-establishing-african-continental-free-trade-area (hereinafter "the Agreement"). 50 See Art 3 of the Agreement establishing the AfCFTA for a comprehensive list of objectives.
51 See Ratshisusu, Ramokgopa and Maroge 2021 Antitrust Bulletin 538.
Considering the above, as well as the opening of Africa for trade, it is not a matter of "if" but of "when" CBCs will entrench and increase, and in that eventuality the question becomes whether the AfCFTA is equipped to deal with this scourge. To provide for effective competition regulation, including the regulation of cartels, the AfCFTA Agreement provided for Phase II Negotiations, which included establishing a competition policy.
52
52 Article 7 of the Agreement establishing the AfCFTA. 53 See Bilaterals.org date unknown https://www.bilaterals.org/IMG/pdf/en_-_draft_afcfta_protocol_on_competition_policy.pdf (hereinafter "Competition Protocol"). 54 Article 2 of the Competition Protocol.
55 Article 6(1) of the Competition Protocol.
The Article proceeds to provide that any agreement, decision by associations of undertakings or concerted practice is prohibited if it has the effect of distorting, preventing or restricting competition in the market unless a party to the agreement, concerted practice, or decision can prove that any technological, efficiency or other pro-competitive gain resulting from it outweighs that effect.
56
56 Article 6(2) of the Competition Protocol. 57 Article 13 of the Competition Protocol. 58 Article 14 of the Competition Protocol.
Competition Tribunal
59
59 Article 24 of the Competition Protocol. 60 Article 17 of the Competition Protocol. 61 Article 3 (1)(a) of the Competition Protocol. 62 Article 3(1)(b) of the Competition Protocol.
As illustrated by the above discussion of CC v BOA regarding establishing jurisdiction, the AfCFTA authorities may face the same challenge as the South African authorities regarding penal jurisdiction. When it comes to the identification, investigation and prosecution of CBCs, the process is by no means easy. As a point of departure, the competition authority for the country or regional block where the alleged cartel conduct occurred must establish that it has jurisdiction over the alleged cartelists.
63
63 See Art 20(1) of the Competition Protocol. 64 It is conceivable that with the retention of certain powers by national and regional competition authorities in terms of Art 20(1) of the Competition Protocol, it may be necessary to establish subject-matter jurisdiction in the "home country" and cede penal jurisdiction to the supranational competition authority. However, such an investigation falls beyond the scope of this note. 65 CC v BOA para 2.
This note has recorded two challenges in CBC enforcement. First, while prosecutorial jurisdiction, which is the jurisdiction to investigate and prosecute CBCs, may be straightforward to establish, the challenge of penal jurisdiction often hampers CBC investigations. Second, with the opening of
borders and the free movement of goods, people and services as envisioned by the AfCFTA, CBCs may find a fertile ground for proliferation in the AfCFTA unless decisively dealt with.
4 Conclusion
Because litigation is ongoing, the question of both prosecutorial and penal jurisdiction has not been closed. While the Tribunal did acknowledge the challenge of not being able to enforce an order extra-territorially,
66
66 CC v BOA paras 17-18. 67 See CC v BOA 2024 paras 183-188, where the CAC dismissed charges against banks including Nedbank, FirstRand, Credit Suisse Group, Bank of America, Australia and New Zealand Banking, Commerz bank, Nomura, HSBC Bank USA, Macquarie Bank and Standard Americas. 68 Mahlaka 2024 https://www.dailymaverick.co.za/article/2024-02-06-competition-commission-presses-ahead-to-concourt-with-currency-manipulation-case-against-bank.
The solution for both the challenges identified above may be found in an age-old tradition between national enforcement agencies, including national, regional and continental competition authorities – cooperation. National and regional competition authorities from different territories have long cooperated on competition law matters, including cartel enforcement.
69
69 See International Competition Network 2007 https://www.international competitionnetwork.org/wp-content/uploads/2018/05/CWG_Cooperation.pdf; OECD 2014 https://www.oecd.org/daf/competition/Challenges-Competition-Internat-Coop-2014.pdf; Tritell and Kraus 2013 https://www.ftc.gov/sites/ default/files/attachments/international-competition/ftcintantiprogram.pdf.
officials, effective enforcement will require common work between AfCFTA officials who oversee the internal market, and with national prosecutors.
70
70 Fox 2022 Review of Industrial Organization 318.
Africa already has numerous successful national and regional competition enforcement agencies
71
71 See Kigwiru 2017 http://www.compcom.co.za/wp-content/uploads/2017/09/ CROSS-BORDER-ENFORCEMENT-IN-AFRICA.pdf. Some national competition authorities include the Competition Commission of South Africa, the Competition Tribunal of South Africa, the Competition and Tariff Commission of Zimbabwe, the Competition and Consumer Authority of Botswana, the Competition Authority of Kenya, the Federal Competition and Consumer Protection Commission of Nigeria; some regional competition authorities include the COMESA Competition Commission, the East African Community Competition Authority and the ECOWAS Regional Competition Authority. 72 Article 20(1) of the Competition Protocol.
Bibliography
Literature
Fox 2022 Review of Industrial Organization
Fox EM "Integrating Africa by Competition and Market Policy" 2022 Review of Industrial Organization 305-326
Horna Fighting Cross-Border Cartels
Horna P Fighting Cross-Border Cartels. The Perspective of the Young and Small Competition Authorities (Hart Oxford 2020)
Kelly et al Principles of Competition Law
Kelly L et al Principles of Competition Law in South Africa (Oxford University Press Cape Town 2017)
Motta Competition Policy
Motta M Competition Policy Theory and Practice (Cambridge University Press Cambridge 2004)
Neuhoff et al Practical Guide to the South African Competition Act
Neuhoff M et al A Practical Guide to the South African Competition Act (LexisNexis Durban 2017)
Ratshisusu, Ramokgopa and Maroge 2021 Antitrust Bulletin
Ratshisusu H, Ramokgopa M and Maroge E "Cross-Border Cartels Enforcement under the Africa Continental Free Trade Area" 2021 The Antitrust Bulletin 528-543
Tavuyanago and Mpofu 2024 JAL
Tavuyanago S and Mpofu K "Safeguarding South African Consumers' Socio-Economic Rights During COVID-19: Competition Commission v Babelegi Workwear and Industrial Supplies CC CR003Apr20" 2024 JAL 125-136
Whish and Bailey Competition Law
Whish R and Bailey D Competition Law 9th ed (Oxford University Press Oxford 2018)
Case law
American Soda Ash Corporation CHC Global (Pty) Ltd v Competition Commission of South Africa (12/CAC/Dec01) [2003] ZACAC 6 (30 October 2003)
Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023)
Competition Commission of South Africa v Bank of America Merrill Lynch International (215/CAC/APR23) [2024] ZACAC 1 (8 January 2024)
Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 (22 December 2017)
Legislation
Australia
Competition and Consumer Act, 2010
South Africa
Banks Act 94 of 1990
Competition Act 89 of 1998
Constitution of the Republic of South Africa, 1996
Internet sources
African Union date unknown https://au.int/en/treaties/agreement-establishing-african-continental-free-trade-area
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Horna 2013 https://www.law.ox.ac.uk/sites/default/files/migrated/ david_goliath__how_young_competition_agencies_can_succeed_in_fighting_cross-border_cartels_-_cclp_l_45.pdf
Horna PM 2013 David & Goliath: How Young Competition Agencies Can Succeed in Fighting Cross-Border Cartels. University of Oxford Centre for Competition Law and Policy Working Paper CCLP (L) 45 https://www.law.ox.ac.uk/sites/default/files/migrated/david_goliath_-_how_young_competition_agencies_can_succeed_in_fighting_cross-border_cartels_-_cclp_l_45.pdf accessed 9 October 2023
International Competition Network 2007 https://www.international
competitionnetwork.org/wpcontent/uploads/2018/05/CWG_Cooperation.pdf
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02-06-competition-commission-presses-ahead-to-concourt-with-currency-manipulation-case-against-banks/ accessed 28 March 2024
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List of Abbreviations
ACCC |
Australian Competition and Consumer |
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AfCFTA |
African Continental Free Trade Area |
CAC |
Competition Appeal Court |
CBC |
cross-border cartel |
FDI |
foreign direct investment |
JAL |
Journal of African Law |
OECD |
Organisation for Economic Cooperation and Development |
SOC |
single overarching conspiracy |
USA |
United States of America |
USD |
United States Dollar |
ZAR |
South African Rand |