Mediating between Public and Private Enforcement in Multi-Jurisdiction Settings

By Noonan, Chris | University of Queensland Law Journal, June 2018 | Go to article overview

Mediating between Public and Private Enforcement in Multi-Jurisdiction Settings


Noonan, Chris, University of Queensland Law Journal


I INTRODUCTION

Private enforcement was built into many competition statutes from the start, (1) or uncovered by the courts early in the life of the regime. (2) Many aspects of private cartel enforcement impact on public enforcement, and vice versa. The relationship between public and private enforcement is complex and multifaceted. However, most examinations of the relationship tend to take public enforcement as given and examine the additional role that private enforcement can and should play. The answer is usually greater deterrence of cartel conduct or compensation for harms suffered by the victims of cartel conduct.

Laura Guttuso argued that the compensatory and deterrence functions of cartel enforcement are intertwined, and can be embodied in either public or private enforcement actions, which calls for a more pluralistic approach towards the underlying functions and goals of cartel enforcement. (3) A proper evaluation of the relationship between public and private enforcement, therefore, cannot be conducted solely within an economic or utilitarian framework, but needs to incorporate notions of corrective and procedural justice as well as responsive regulation.

The operation of international cartels across multiple jurisdictions also impacts on our assessment of the relationship between public and private proceedings. Damages actions in one jurisdiction are sometimes claimed to impact the incentives for leniency applications in other jurisdictions. Cartel enforcement may involve not just pluralism in approaches but also in jurisdictions. Additional challenges arise, and values must be considered, in managing the relationship between public and private enforcement when considered in a multi-jurisdiction setting. A holistic view of all of the components of public and private enforcement is in tension with the urge to adopt a simple unified theoretical framework to guide competition law and policy.

Part 2 sketches the ways that the competition laws and competition agencies may help secure compensation for victims of cartel conduct. Part 3 argues that the objective of promoting consumer welfare and efficiency does not provide an adequate explanation of all aspects of cartel enforcement. Part 4 argues that cartel enforcement needs to be considered in a multi-jurisdiction setting. Part 5 examines the challenges of securing deterrence and compensation for cartel conduct in a multi-jurisdiction setting. Part 6 briefly concludes.

II RELATIONSHIP BETWEEN PUBLIC AND PRIVATE ENFORCEMENT

In virtually all jurisdictions, public enforcement of competition law has assumed a much greater importance than private enforcement. (4) Public enforcement is not exclusively concerned with deterrence. It has a role, and could have a bigger role, in the resolution of private damages claims. The rules and enforcement policies that may assist in securing compensation vary across jurisdictions. They fall into three categories.

First, some jurisdictions consider the payment of compensation a mitigating factor in the assessment of penalties for violation of competition law; (5) other jurisdictions take offers of compensation and restitution into account in considering leniency applications. (6) Reduced liability for damages for leniency applicants may be conditional on cooperation with claimants.

The second category includes a host of mechanisms that assist private parties pursue damages claims. Special fast-track procedures may be created to aid competition law claimants. (8) Access to information is critical to successful damages claims. Discovery from competition agencies and rights of access to official information has long been a feature of common law civil proceedings. The EU Damages Directive requires the member state courts to be able to order the defendant, a third party or a competition authority to disclose information. (9)

The difficulty of proving the existence of a cartel in private actions can be mitigated through reliance on decisions of competition agencies or the outcome of public enforcement proceedings. …

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