The first CPI Antitrust Chronicle for February 2019 looks at the issue of private enforcement of antitrust laws from the view point of different jurisdictions.
As opposed to public enforcement of competition laws, private enforcement, according to the OECD, can be defined generally as “litigation initiated by an individual, a legal entity, an organisation or a public entity (such as local government and procurement agency in the bid-rigging case) to have a court establish an antitrust infringement and order the recovery of the damages suffered or impose injunctive reliefs.”
There is a general consensus that private enforcement, in conjuncture with public enforcement, can improve competition regimes. But where is the right balance between public and private enforcement of antitrust policy and antitrust law enforcement? On the one hand, it is important to ensure that private enforcement does not adversely affect the effectiveness of public enforcement, encouraging greater compliance with antitrust rules, and on the other hand, jurisdictions wish to avoid potentially frivolous litigation, among other pitfalls.
Each jurisdiction has its own approach to private competition enforcement. In some jurisdictions, private enforcement of competition law still remains a relatively new phenomenon, in others it is more established. That being said, are there common building blocks to effective private enforcement? And if so what are they and what are some of the experiences lawmakers could learn from in other jurisdictions which are still forging their own path?
As always, thank you to our great panel of authors.