ASCOLA Competition Law series
Edited by Josef Drexl, Warren S. Grimes, Clifford A. Jones, Rudolph J.R. Peritz and Edward T. Swaine
Chapter 9: Australia’s Criminalization of Cartels: Will it be Contagious?
Caron Beaton-Wells* INTRODUCTION 1 The international movement in favour of criminal sanctions for ‘serious’ cartel conduct over the last decade has been well-documented.1 In 2009, Australia became the latest convert in the campaign led by the United States to have this type of anti-competitive activity seen and dealt with as a crime. Australia’s conversion may be taken as further evidence of ‘common ground’ if not convergence in both substantive antitrust law and enforcement strategy with respect to cartel conduct. However, it should be seen as commonality or convergence at the highest level of generality or abstraction only.2 The Australian experience supports equally the view that the approach taken by a particular country in deciding whether to criminalize and, if so, how to define and enforce a cartel offence is likely to be distinctive in various respects. There will be multiple complex forces at work in such matters, requiring insight from at least the disciplines of political science, sociology, regulation, organizational behaviour, psychology and history, in addition to orthodox legal and economic analysis.3 * The author is grateful to Brent Fisse for comments on an earlier draft and to Christopher Tran for editorial and research assistance. Errors or omissions are the sole responsibility of the author. 1 C Harding, ‘Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalisation of Cartels’ (2006) 14 Critical Criminology 181. 2 Perhaps as general as the principle that competition law should be effectively enforced: one of the 11 ‘emerging principles of international competition law’ identified in...
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