Edited by John Duns, Arlen Duke and Brendan Sweeney
Chapter 14: Private antitrust enforcement: Comparative and policy considerations
In the United States (US), there are approximately ten private antitrust lawsuits for every antitrust lawsuit by the principal public enforcers – the Justice Department’s Antitrust Division and the Federal Trade Commission. Until recently, the US was exceptional in this regard. In most other antitrust jurisdictions, most or all enforcement was public. In recent years, however, there has been lots of talk around the world about expanding private antitrust enforcement. Most prominently, the European Commission’s 2005 Green Paper and 2008 White Paper called for expansion of private antitrust enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) within the European Union’s Member States. At this time, the issue remains under consideration. Beyond the EU, a number of growing antitrust jurisdictions are implementing or expanding private antitrust enforcement. This chapter introduces some of the key themes raised by private antitrust enforcement. Section 1 briefly summarizes historical and recent developments in the development of the private enforcement model. Section 2 considers whether private antitrust enforcement achieves its two primary assumed objectives – compensation and deterrence. Section 2 also considers the effects of prioritizing one goal or the other, and possible alternatives to compensation and deterrence as goals of private enforcement. Section 3 considers some of the effects of private antitrust litigation on the overall system of antitrust enforcement, including possible negative or positive spillovers to public litigation and the creation of antitrust constituencies. Finally, Section 4 introduces some of the issues that arise when parties litigate antitrust cases across borders.
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