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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Comments and questions welcome

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c.beaton-wells@unimelb.edu.au