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CROSS BORDER INFORMATION SHARING DRAFT FRAMEWORK

CROSS BORDER INFORMATION SHARING DRAFT FRAMEWORK. 6 th Annual Conference of the African Dialogue on Consumer Protection 8 -10 September 2014 Crossroads Hotel - Lilongwe, Malawi. Lewis Kulisewa Director, Consumer Welfare & Education CFTC - Malawi

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CROSS BORDER INFORMATION SHARING DRAFT FRAMEWORK

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  1. CROSS BORDER INFORMATION SHARING DRAFT FRAMEWORK 6th Annual Conference of the African Dialogue on Consumer Protection 8 -10 September 2014 Crossroads Hotel - Lilongwe, Malawi. Lewis Kulisewa Director, Consumer Welfare & Education CFTC - Malawi leekulisewa@gmail.com / lewis.kulisewa@cftc.mw

  2. Outline of the Presentation • Introduction • Background Information • Collaboration in Enforcement work • Information Sharing • Barriers to effective information sharing • What should be done to remove barriers • Conclusion

  3. INTRODUCTION • CFTC has a dual mandate of enforcing competition and protecting consumers from unfair trading practices • Increasing trends of cross border trade provides a breeding ground for cross border violations of consumer interests • A robust framework for international cooperation and information sharing is key to effective enforcement of cross border consumer violations.

  4. INTRODUCTION • CFTC joined AD in 2013 and fully supports sustained efforts to increase international cooperation in the enforcement of consumer protection. • The key question at this stage is: How can we make international cooperation work? • This is the gist of this presentation

  5. BACKGROUND INFORMATION • African Dialogue established in 2009 with a view to provide an opportunity to consumer protection agencies to informally interface with each other and share best practices on the enforcement of consumer protection issues. • The 5th AD held in Livingstone Zambia in September 2013; attended by 16 national authorities and 3 regional bodies - COMESA, UNCTAD and CUTS

  6. BACKGROUND INFORMATION • Members adopted the Livingstone Declaration - a Draft Statement of Intent, which underlined the need for members to use their best efforts to address cross border consumer protection problems through close cooperation in the following areas: Enforcement; Investigations; Information Sharing and Capacity Building • Recognizing that there are some consumer violations that go beyond national frontiers, members noted the need for close cooperation in the enforcement of consumer protection laws.

  7. COLLABORATION IN CROSS BORDER ENFORCEMENT • Examples of violations include fraud, spam, unfair and deceptive commercial practices, product safety and food safety among others • To cooperate on appropriate case investigations, it is proposed that; • The national authority handling the case should make a written request for assistance to the national authority in the other jurisdiction.

  8. COLLABORATION IN CROSS BORDER ENFORCEMENT • The requesting authority should provide the following information: description of violation or suspected conduct; applicable law or regulation and its relevance to the requested assistance. • The requested authority will analyze the conduct within the context of their own jurisdiction and whether it constitutes an offence.

  9. COLLABORATION IN CROSS BORDER ENFORCEMENT • Where facts on the ground point to an offence in the requested jurisdiction, it is almost mandatory that the requested authority will provide assistance in the investigation and enforcement process. • In the end, the decision by the requested authority may ultimately be influenced by; • Resource availability • Confidentiality provisions

  10. CROSS BORDER INFORMATION SHARING • The ability of national authorities to freely exchange information beyond their frontiers is key to achieving consumer welfare. Essential elements of effective information sharing - the 4Cs • Commitment by parties to combat cross border consumer violations • Coordination – different authorities should work together to process information requests within reasonable times. It is important to have designated contacts responsible for information exchange

  11. CROSS BORDER INFORMATION SHARING • Cooperation – the legal framework should allow national authorities to enter into cooperation agreements (MOUs) for purposes of sharing information. There could be bilateral or multilateral MOUs. • Conferences, workshops , teleconferences, video conferences etc

  12. STEPS FOR PROCESSING INFORMATION REQUESTS • The requesting authority should make a written request for assistance to authorities in the other jurisdiction. • The request should clearly specify • The purpose for which the information is sought ie is it for market intelligence or to be used as evidence in court • Undertakings of the exclusive use of the information; and that it wont be passed to third parties without further authorization.

  13. STEPS FOR PROCESSING INFORMATION REQUESTS • The requested authority searches its data library for the requested information. Where the information requested is stored by a different government agency, the requested authority may further seek the information from the relevant agency, if necessary. • Once it is available, the requested authority analyses the information and prepares a report to be shared with the requesting authority. • The report is submitted to the requesting authority.

  14. IMPEDIMENTS TO CROSS BORDER COOPERATION • Lack of a clear sense of commitment to cooperate • Importance of the right attitude as a building block • Need to know each other and build trust • Informal contacts more effective and quicker • Complex legal systems – • Dual criminality arrangements • Bureaucracy / red tape • Inadequate staffing / Inadequate exposure to training • Confidentiality provisions

  15. WHAT SHOULD BE DONE TO REMOVE BARRIERS The 4Cs are key • Lobbying and advocacy – to create awareness and mobilise support for cross border information exchange; encourage the enactment of flexible regulations on information sharing • Capacity Building: Support the creation of staff exchange programmes and participation in regional /international training programmes & seminars; provide technical assistance etc.

  16. WHAT SHOULD BE DONE TO REMOVE BARRIERS The 4Cs are key • Set up a central online library, complete with contact details for officials facilitating information exchange where necessary; there is need to know who to contact for cross border investigations • Enter into bilateral and multilateral MOUs on information sharing, noting that negotiation of an MOU is as important as the MOU itself. It enables the parties to know each other well and how they can exchange information effectively

  17. CONCLUSION • The time for enhanced cross border cooperation and information sharing is now • We need to build trust through open lines of communication among national agencies • Inadequate communication can undermine trust and cripple cross border cooperation • Embrace the 4Cs • It begins with you

  18. THE END Zikomo Kwambiri For more information, contact The Executive Director Competition and Fair Trading Commission Off Mandala Road Mpikisano House Private Bag 332 Lilongwe MALAWI Tel: +2651759506/7 Fax: +2651759522 Email: competitioncommission@cftc.mw / consumer@cftc.mw

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