Does the UK’s New Cartel Offence Contain a Devastating Flaw?

(by Peter Whelan) On 25 April 2013, after almost one year of making its way through Parliament, the Enterprise and Regulatory Reform Bill finally received Royal Assent.  The UK Cartel Offence will be reformed in a number of significant ways when this piece of legislation comes into force later in the year.[1] Unfortunately, a potentially devastating flaw has crept into what started out as a very positive reform.

Ireland Offers a Glimmer of Hope for European Cartel Criminalisation

(by Peter Whelan)   In order for it to be successful, cartel criminalisation in Europe must overcome complex theoretical, legal and practical challenges.[1] Academics have an important role to play by offering theoretically-consistent, legally-sound, practical advice on how to devise and to implement a successful strategy of cartel criminalisation. In fulfilling this role, we should acknowledge when steps have been taken in the right direction by the EU Member States concerning the process of cartel criminalisation. Three significant steps have recently been taken by Ireland in this regard.

Should Libor-Rigging be treated like Price Fixing?

(by Andreas Stephan) With multi-million pound fines, high profile resignations, heated arguments in Parliament and calls for criminalisation by the UK government, one would be forgiven for thinking that Libor rigging is worse than price fixing. Few fully understand the practice of falsely reporting expected borrowing rates, but everyone seems to want it severely punished. The scandal first came to light in 2008 when traders realised  the Libor rate was no longer reflecting reality. The question is whether calls for punishment and criminalisation are the best way to deal with Libor-fixing or whether the case has simply become a vent for wider public anger at the perceived evils of the banking sector.

Postscript on Non-Compete Clauses, Contractual Disputes and Splitting Atoms

(by Bruce Lyons) The European Commission last week agreed legally binding commitments by Siemens and Areva to reduce the product scope and duration of their excessive non-compete clauses.  This follows the break-up of their nuclear technology joint venture.  Some of these clauses had been for 11 years from the break-up and others encompassed markets in which the JV did not even have its own products.  The settlement struck down the latter and reduced the duration of others to a maximum of three years.

An Unpopular Solution to the Private Enforcement Problem

(by Andreas Stephan) The UK’s Department for Business is currently consulting on a package of reforms aimed at making it easier to bring private actions for damages against firms engaged in anti-competitive behaviour. Compensating consumers harmed by cartels and abuse of dominance is something competition authorities throughout Europe feel is important. However, the price to pay for private actions is the potentially enormous transaction costs of legal representation and economic evidence, coupled with the danger of scuppering public enforcement by undermining the leniency programme. One solution not considered in the current debate is to internalise compensation claims within competition authorities, drawing awards from public fines.