The UK’s New Cartel Offence: It Could Be Alright on the Day

July 9, 2013

(by Andreas  Stephan) The Enterprise and Regulatory Reform Act 2013 drops the requirement of dishonesty and excludes cartel agreements made openly. At a late stage three additional defences were introduced (s.47 ERRA). The defendant can show they did not intend that the nature of the arrangements be hidden from either their customers or the competition authority. It will also be a defence to show that a defendant took reasonable steps to disclose the nature of the agreement to lawyers, in order to get advice, prior to its making or implementation. Writing on this blog a couple of months ago, my colleague Peter Whelan expressed concern that this defence could pose a devastating blow to the cartel offence. Here I reflect on how this defence could pan out. Read the rest of this entry »

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

May 21, 2013

(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. Read the rest of this entry »

Monitor’s Advice to the OFT and the New Healthcare Regulation

February 20, 2013

(by Mary Guy)[1] On 11 February, Monitor (the UK’s independent regulator of NHS foundation trusts) published its advice to the Office of Fair Trading (OFT) regarding the anticipated merger of Poole Hospital NHS Foundation Trust and The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (hereafter “the Dorset FT merger”). This is the first NHS merger to be assessed on competition grounds under the Enterprise Act 2002 (EA02) merger provisions as implemented by the Health and Social Care Act 2012 (HSCA 2012). It has been referred by the OFT to the Competition Commission (CC), which will produce its final report by June 24, 2013. Read the rest of this entry »

Why Keep a Dog and Bark? The UK Government Replicates the Actions of its Independent Energy Regulator

November 21, 2012

(by Catherine Waddams) The Department of Energy and Climate Change yesterday published a discussion paper which virtually duplicates the consultation document published by Ofgem four weeks ago as part of its Retail Market Review (a few days ahead of the original schedule because of the prime minister’s surprise announcement that all consumers would be put onto their supplier’s  cheapest energy tariff).  Yesterday’s  discussion paper was intended to clarify the prime minister’s announcement, but even this is still somewhat obscure (the paper talks about ‘our ambition’ and ‘all customers will have been placed on the cheapest tariff’ without specifying the mechanism for achieving the objective).  While the government’s discussion document explicitly supports and builds on Ofgem’s proposals, it invites responses by January 4th., while response to the Ofgem consultation document are due in by December 21st. It will be interesting to see whether respondents change their views over Christmas, or perhaps as a result of their New Year resolutions. But why is a government department replicating the actions of its supposedly independent agent? Read the rest of this entry »

Should Libor-Rigging be treated like Price Fixing?

July 11, 2012

(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. Read the rest of this entry »


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