Published: February 2017Contents
i) What are the hot topics?
Globalisation is the overarching theme of modern cartel enforcement. Previously stubborn cultural attitudes regarding cartel activity are now gradually shifting. Many jurisdictions have moved to give their competition authorities additional investigative tools, including wiretap authority and broad subpoena powers. There is also a burgeoning movement to criminalise cartel activity in places where it has previously been regarded as wholly or principally a civil matter. And the growing use of leniency programmes has worked to radically destabilise global cartels, creating powerful incentives for firms to turn against their co-conspirators.
Against this backdrop, difficult questions lay ahead for the practice. Which authorities should (rather than can) exercise jurisdiction over a particular international cartel? How harshly should (rather than can) a cartel offender be punished collectively or by any one authority? These and similar questions continue to test traditional notions of jurisdiction, comity and adequate deterrence, and will challenge the cartel practice for years to come.
ii) Tell us about any key legal developments – recent or pending – and their international impact.
Recent developments evidence a trend among authorities to amplify the risks and rewards that flow from a corporation’s investment in and commitment to antitrust compliance. An effective programme may enable a corporation to position itself for leniency or, at the very least, to persuade an authority to reduce any resulting cartel fine. Conversely, where a corporation’s compliance programme is found wanting, that corporation should expect not only to pay a fine, but also to have a costly compliance monitor imposed upon it. This trend is encouraging corporations to re-evaluate and reinforce existing compliance programmes to prevent, detect and mitigate global cartel risks.
iii) What are the biggest opportunities and challenges for practitioners and clients?
In the current enforcement environment, the risk of potential liability, both civil and criminal, for corporations engaged in unlawful agreements with competitors as to price, markets, and output, is growing steadily. More eyes are watching for cartel offences and more jurisdictions are eager to prosecute cartel offenders than ever before.
As a result, large corporate enterprises whose products are sold abroad are increasingly likely to face antitrust investigations characterised by a variety of authorities, simultaneous processes, and seemingly endless demands for documents and witnesses. This environment requires corporations to tread cautiously to ensure that responses to the demands of one enforcement regime do not have a proverbial domino effect on the ability of the corporation to defend against civil and criminal liability in other enforcement jurisdictions. This reality places a premium on corporations and the counsel they employ on maintaining, at all times, a global perspective and strategy when navigating cartel investigations.
Gleiss Lutz Munich
Gleiss Lutz Stuttgart
J Sagar Associates Mumbai
J Sagar Associates New Delhi
Uría Menéndez Madrid
Uría Menéndez Brussels