Criminalization of Cartels and Leniency: An Exercise in Complexity

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Marcelo Calliari, Sep 16, 2015

What change a decade brings. Ten years ago the calls for a spread of leniency policies were undisputed. Their success in detecting cartels in a few jurisdictions, notably the United States and the European Union, seemed to justify the expectation that their adoption by more and more countries would only improve enforcement and desincentivize cartels worldwide. A little less undisputed, but with similar claims of increased deterrence, the call for criminalization was also spreading and the discussion on pros and cons of including this weapon in the anticartel arsenal grew and spread.

The success of those evangelizing movements is reflected in the increased number of jurisdictions that have adopted criminal provisions, and the much larger number of those that have introduced leniency programs. It should therefore be somewhat surprising to see that pari passu with the trend, when defenders of these developments should be celebrating, the debate has shifted somewhat to ponder whether we have gone too far, and whether the risk today is that leniency itself may be disincentivized by the growing complexity, uncertainty, and cost associated with its dissemination.

There are many reasons for this shift in the leniency debate and this publication will explore several of them. This paper will focus on only one, that of criminalization of cartel enforcement and its impacts on the inc…

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