Sanctions in Anti-trust cases – Prof. Caron BEATON-WELLS – University of Melbourn - November...
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Criminal Sanctions – The Leniency Conundrum Professor Caron Beaton-Wells University of Melbourne OECD Global Forum on Competition Sanctions in Antitrust Cases – Session IV 1-2 December 2016
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Transcript of Sanctions in Anti-trust cases – Prof. Caron BEATON-WELLS – University of Melbourn - November...
Criminal Sanctions –
The Leniency Conundrum Professor Caron Beaton-Wells
University of Melbourne
OECD Global Forum on Competition
Sanctions in Antitrust Cases – Session IV
1-2 December 2016
Instrumental
justifications?
30 countries have
criminalised cartel conduct
Since the late 1990s…
Normative
justifications?
Coincidence?
50 countries have adopted
leniency policies
30 countries have
criminalised cartel conduct
Since the late 1990s…
By recognizing
interdependencies among
elements [of an enforcement
system], it is possible to
understand more clearly how an
adjustment in one element
affects others…
- William Kovacic (2011)
CRIMINALISATION AND LENIENCY – INSTRUMENTAL CONSIDERATIONS
Do criminal sanctions
increase leniency
applications?
Cartel detection
Do criminal sanctions mean
more cooperation and
evidence from individuals?
Cartel investigation
Does testimony from
leniency witnesses assist
secure convictions?
Cartel prosecution
Does testimony from leniency
witnesses help to secure
convictions?
Do criminal sanctions mean
more cooperation and
evidence from individuals?
Cartel deterrence
Do criminal sanctions and
leniency combined increase
deterrence?
CRIMINALISATION AND LENIENCY – NORMATIVE CONSIDERATIONS
Impact on public support
and system legitimacy?
- Stephan & Nikpay, 2015; Beaton-Wells et al, 2010
Country % public support for leniency
United States 51
United Kingdom 53
Germany 46
Italy 46
Australia 25
Impact on normative compliance
by the business sector?
Impact on consistency in policy
and practice?
NO • Cartelists cheat the market and the public by fixing
prices, etc
YES • Cartelists cheat each other by deviating from the
cartel
YES • Cartelists cheat each other by applying for leniency
NO • Cartelists cheat on the competition authority by not
reporting and cooperating fully
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Criminal sanctions and leniency
policies -
Key questions
1. Does the combination enhance or detract
from the detection, investigation, prosecution
and ultimately deterrence of cartels?
2. Does the combination enhance or detract
from the role and force of the criminal law in
labelling and punishing cartel conduct as
criminal?
Criminal sanctions and
leniency policies - unnatural
allies in the war against
cartels?
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