The Criminal Law of Competition in the UK and in the US
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The Criminal Law of Competition in the UK and in the US

Failure and Success

Mark Furse

This invigorating work details the policy arguments behind the introduction of the law, and examines – through consideration of the successful prosecutions in the US – the extent to which the law in practice may be considered to have succeeded or failed in the UK. The role of the US as global antitrust policeman is also considered. The book concludes with a consideration of the difficulties facing the UK in choosing to pursue a criminal route within the current civil framework.
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Chapter 2: Criminalisation of cartel activity: economics and law

Mark Furse


This chapter reviews the economic and legal literature relating to the criminalisation of competition law in general, and of cartel activity in particular, with the aim of setting out the main themes that apply in this area. I do not substantially rework the arguments raised in the relevant literature, and there is not space here to present a comprehensive review. The extensive footnotes and bibliography should assist interested readers in following the threads of this literature should they wish to do so. Literature particular to specific aspects of the UK regime is discussed in Chapters 4 and 7, below. One of the surprising elements in the UK context has been the relative lack of comment on the Cartel Offence, although this has been somewhat redressed in the last year and a half, following the collapse of the British Airways case (discussed in Chapter 4), and the publication in March 2011 of a Consultation Document suggesting changes to the formulation of the Cartel Offence. I do not in this chapter discuss in any detail the general literature relating to the economics of competition law, and I proceed from the starting assumption that the maintenance of effective competition law is of benefit. The focus here is on cartelisation, although I include a discussion of the economics of law literature relating to enforcement in general, and deterrence and punishment in particular. Under this approach, ‘criminal behaviour becomes part of a much more general theory and does not require ad hoc concepts of differential association, anomie, and the like’.

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