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DAVID UNTERHALTER SC

MA (Cantab) LLB (Wits) BCL (Oxon)
CALL DATE: 2009 1990 (South Africa) SILK: 2001

SUMMARY

David Unterhalter SC joined Monckton Chambers in 2009. He is one of South Africa's foremost barristers, with a leading practice in competition law, trade law, public law (particularly as it applies to regulatory agencies) and commercial law. He is widely regarded as the leading competition law barrister in South Africa. In 2009, he transferred his practice to the English Bar.

David has appeared in many landmark cases before South Africa's appellate courts and has built a large practice in trial advocacy before the High Court and specialised tribunals. David regularly acts for major multinational and South African companies in his fields of expertise, among them: BP, Glaxo Wellcome, Vodafone, Unilever, Mittal, Novartis, JTI, Texaco, Anglo American and Sasol. He is also briefed extensively to act for regulators, most especially in judicial review work. In the field of competition law, he is as much at home in cases concerning cartels and abuse of a dominant position, as he is in advising upon mergers.

David is the Chairman of the Appellate Body of the World Trade Organisation. The Appellate Body is the permanent adjudicative branch of the WTO. It determines appeals by member countries of the WTO concerning their rights and obligations in trade disputes. David also serves on the International Court of Arbitration of the ICC.

 

RECENT/MAJOR CASES

  • Mittal Steel v Harmony Gold Mining (abuse of a dominant position and excessive pricing)
  • JTI v Batsa (abuse of a dominant position and category management)
  • American Natural Soda Ash Corp. v SA Competition Commission (application of domestic law to an extraterritorial cartel)
  • Telkom/ BCX (contested merger in the telecommunications sector)
  • Goldfields/Harmony (hostile take over in the mining industry)
  • Glaxo Wellcome v National Association of Pharmaceutical Wholesalers (abuse  of dominant position in the distribution of pharmaceuticals)
  • Brenco Inc v Board on Tariffs and Trade (judicial review and anti dumping)
  • Letseng Diamonds v JCI Limited (company law: application rule in Foss v Harbottle)
  • BP/Transnet (review of pipeline tariffs)
  • President of the Republic of South Africa v Masethla (constitutional challenge to classified documents)
  • Eisenberg v Minister of Home Affairs (constitutionality of immigration regulations)
  • Islamic Unity Convention v Minister of Telecommunications (hate speech and the right to freedom of expression)

 

COMMERCIAL LITIGATION

David has developed a strong commercial litigation practice throughout his time at the Johannesburg Bar.

He has considerable experience in trial advocacy, and in particular litigating  contractual disputes, issues of company law and  negligence cases, as well as appearing in commercial arbitrations.

Prominent cases in which he has featured include:

  • Letseng Diamonds v JCI Limited (company law - principle in Foss v Harbottle)
  • Jowell v Bramwell Jones (damages for breach of trust)
  • NPC Electronics v Taitz (auditor's liability)
  • Gordon Lloyd Page v Rivera (unlawful competition  and restraints of trade)
  • Hix Networking v System Publishers ( prior restraining orders)
  • Vigario v Afrox ( negligence and industrial safety)
  • Gutsche v Metal (legality of arbitration appeal)

 

COMPETITION LAW

David has acted in many of the major cases in South Africa relating to breaches of competition law

He has particular experience of issues concerning: cartels, abuse of dominant positions, contested mergers and industry wide inquiries.

Much of the work has involved major litigation in the High Court, Appellate Courts and specialist tribunals across a broad range of industry sectors including: airlines, banking, broadcasting, energy, health, pharmaceuticals and telecommunications. 

Among the significant competition law cases in which he has appeared are the following:

Cartel cases

  • American Natural Soda Ash Corp. v SA Competition Commission (application of domestic law to an extraterritorial cartel)
  • SA Competition Commission v Pioneer Foods (cartel in the bread industry)

Abuse of a Dominant Position

  • SA Competition Commission v South African Airways (abuse of dominant position by an airline making payments to travel agents)
  • Mittal Steel v Harmony Gold Mining (abuse of dominant position and excessive pricing)
  • National Association of Pharmaceutical Wholesalers v Glaxo Wellcome (abuse of dominant position in distribution of pharmaceuticals)
  • Federal Mogul v Competition Commission (resale price maintenance)
  • Sasol Oil v Nationwide Poles (abuse of dominant position - price discrimination)

Merger Cases

  • Goldfields Ltd v Harmony Gold Mining (hostile take over in the gold mining sector)
  • Nedbank v Standard Bank (hostile take over in the banking industry)
  • Telkom/ BCX (contested merger in the telecommunications sector)
  • Sasol/Engen (contested merger in the oil industry)
  • Anglo American/ Kumba Resources (contested merger in iron ore market)
  • Primedia v Competition Commission (contested merger in the broadcasting sector)
  • CHG v Competition Commission (contested merger in the hospital sector)
  • Competition Commission's enquiry into the banking sector

 

PUBLIC & ADMINISTRATIVE LAW

David's reputation as a leading barrister in South Africa in the fields of constitutional law and judicial review has led to frequent appearances in South Africa's Constitutional Court.

He has litigated many high profile cases concerning the bill of rights and division of powers and has accumulated a wide experience of judicial review cases involving specialised regulators. He has also worked extensively on substantive matters before these agencies. These regulatory agencies include: the broadcasting and telecommunications regulator (ICASA),   Securities Regulation Panel (SRP), the trade regulator (ITAC) ,  the energy regulator (NERSA),  the Nuclear Regulator, and provincial and national environmental regulatory authorities.

Leading cases include:

  • Certification of the Constitution of the Republic of South Africa, 1996 (the review  against agreed principles of the  final constitution by the Constitutional Court)
  • Ferreira v Levin No (privilege against self-incrimination in bankruptcy inquiry)
  • S v Jordan (right to equality and the statutory ban upon prostitution)
  • Eisenberg v Minister of Home Affairs (constitutional challenge to proposed immigration regulations)
  • Islamic Unity Convention v Minister of Telecommunications (hate speech and the right to freedom of expression)
  • Masethla v President of the Republic of South Africa  (freedom of speech and the powers of the intelligence services to classify documents)
  • Jooste v Score Supermarkets (equality challenge to Workmans' compensation legislation)
  • Radio Pretoria v ICASA (challenge to refusal of a broadcasting license)
  • BP/ Transnet (challenge to tariff increases for oil pipelines before NERSA)
  • Simelene No v Seven Eleven Corporation (administrative justice and the investigative powers of the Competition Commission)
  • Brenco v Board on Tariffs and Trade (judicial review of an anti dumping investigation)
  • Competition Commission v General Council of the Bar (competition compliance and the Bar's rules)

 

TRADE LAW

He has appeared in many trade remedy cases  before the domestic authorities in South Africa: the Board on Tariffs and Trade, and its successor ,the International Trade Commission.  In the main these cases concern anti-dumping, subsidies and countervailing measures.  David also advised the South African authorities on the revision of  the  trade remedies legislation and has acted in many cases of judicial review concerning the domestic regulator.

Leading cases include:

  • Samsung (anti dumping duties in the cable industry)
  • Johnson and Johnson (anti-dumping investigation in health care products)
  • Ranbaxy (anti dumping in the pharmaceutical industry)
  • Prestige Holdings (revision of duties)
  • Brenco v Minister of Trade and Industry (judicial review of an anti-dumping investigation)
  • Scaw Metals v ITAC (urgent injunctive relief and judicial review of a sunset review)

 

ADDITIONAL INFORMATION

David is a co-author of a book on South African Competition Law, a contributor to WTO Governance, Dispute Settlement and Developing Countries (ed Janow et al ) and a regular contributor to the Trade Practices Law Journal. He was a visiting professor at Columbia Law School in 2008. He is frequently invited to speak  at international conferences on competition law and trade law.