Research Handbooks in Financial Law series
Edited by Barry Rider
Chapter 11: Unfair competition and crime
On 3 April 2009, Belinda Barnett, senior counsel to the Deputy Assistant Attorney General for Criminal Enforcement, Antitrust Division, United States (“US”) Department of Justice (“the DOJ”) said: It is well known that the Antitrust Division has long ranked anti-cartel enforcement as its top priority. It is also well known that the Division has long advocated that the most effective deterrent for hard core cartel activity, such as price fixing, bid rigging, and allocation agreements, is stiff prison sentences. Price-fixing, bid-rigging, and other forms of collusion are illegal and are subject to criminal prosecution by the DOJ. The US Sherman Antitrust Act (“the Sherman Act”) prohibits any agreement among competitors to fix prices, rig bids or engage in other anticompetitive activity. In 2003, the Dawson Committee recommended the introduction of criminal sanctions for hard-core cartel conduct. Cartel conduct became a criminal offence under Part IV of the Australian Competition and Consumer Act 2010 (Cth) (“the Competition Act”) on 24 July 2009. In New Zealand, the Commerce (Cartels and Other Matters) Amendment Bill (“the Cartel Bill”) was introduced in October 2011. The Cartel Bill passed its second reading on 24 June 2014, and the amendments to the New Zealand Commerce Act (“the Commerce Act”) are expected to become law sometime in 2015. Like Australia, it introduces criminalisation of hard-core cartel activity. The Cartel Bill defines a “cartel provision” as a contract, arrangement or understanding that has the purpose, effect or likely effect of price-fixing, restricting output or market allocating.
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