Edited by Albert A. Foer and Jonathan W. Cuneo
Byung Geon Lee1 and Ke Li2 The intensity of private antitrust enforcement across the Asian and African nations has a wide range of variation. In Australia, Israel, Japan, and Korea, the number of private damages actions has gradually increased. Many private actions in those nations are initiated following the competition agencies’ finding of antitrust violations. For example, the Korea Fair Trade Commission (KFTC) annually finds approximately 40 cartels guilty, and private parties have commonly brought damages actions after the KFTC’s corrective measures. In contrast, private antitrust enforcement of many other countries in these regions remains inactive in tandem with the comparatively weak public enforcement regimes. To the extent that private enforcement is restrained, this seems to be in large part the result of the limited ability of private parties to gather evidence independently. Asian and African nations’ private antitrust enforcement procedures also have broad variations. For example, class action procedures, which can provide workable litigation mechanisms for the mass wrongs of competition law, are varying. The opt-out class action mechanism is available in Australia, Israel, Indonesia, and South Africa; however, no antitrust damages actions have been filed in the latter two countries utilizing this optout device as of May 2009. Most other Asian and African jurisdictions have a traditional opt-in class action mechanism, under which each injured party must individually express his or her interest in participating in the action. As a third method, Indonesia, Japan, Korea, and Taiwan permit an association lawsuit which certain qualified associations can bring on...
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