The International Handbook on Private Enforcement of Competition Law

The International Handbook on Private Enforcement of Competition Law

Elgar original reference

Edited by Albert A. Foer and Jonathan W. Cuneo

With the international community on the brink of an explosion of private remedies for violation of national competition laws, this timely Handbook provides state-of-the-art analysis of the private enforcement of competition laws across the globe. Private enforcement of antitrust is becoming a significant component of competition policy laws worldwide; today, more than a hundred jurisdictions have adopted market regimes operating within a framework of competition law, providing a varied base for developing ways by which persons injured by anticompetitive conduct will (or will not) be able to obtain remedies.

Chapter 2: The Impact of International Cartels

John M. Connor

Subjects: law - academic, competition and antitrust law, law -professional, competition and antitrust law


John M. Connor1 Introduction Despite the evident antitrust successes in sanctioning international cartels since 1990, many remain skeptical about whether current enforcement regimes are capable of serving the aims of antitrust. Deterrence is the most commonly accepted legal-economic theory that justifies the passage and enforcement of antitrust laws, and there is emerging evidence that in some jurisdictions it has a strong role as a practical guide to imposing anti-cartel fines.2 There is also mounting evidence that monetary penalties are at historically high levels in North America and Western Europe, and at low but rapidly accelerating levels in key jurisdictions on other continents. That penalties are by most measures highest in North America is in large part due to the nearly unique availability and widespread use of private rights of action by cartel victims, further amplified by severe penalties for individual cartel executives. Optimal deterrence principles imply that fines, private settlements, and individual criminal penalties are fungible: they are complementary punishments with respect to their ability to raise the expected costs of criminal activity. While deterrence may have improved marginally since the 1990s, there is a near consensus among scholars of modern international cartels that current competition policies cannot optimally deter cartel behavior because such policies are ‘oriented towards addressing harm done in domestic markets . . . [or] merely prohibit cartels without [sufficiently strong] sanctions.’3 Connor finds that domestic cartel overcharges are so high and conspiracies so durable that current US public and private monetary sanctions provide inadequate ex post deterrence;4 true...

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