Enhancing International Cartel Enforcement: Some Modest Suggestions

Donald Klawiter, Sep 28, 2011

International cartel enforcement is the centerpiece of the antitrust world today and is certainly a subject of concern and anxiety for corporate boards and executives throughout the world. While it seems that this very powerful enforcement program has long dominated antitrust practice, it has been active and effective for less than twenty years.

Twenty years ago, the European Commission and the Antitrust Division of the U.S. Department of Justice were aggressively pursuing national, regional, and local cartels within their own borders, but there was little effective action beyond those borders. There was virtually no cooperation or coordination among enforcement agencies. Indeed, there were blocking statutes to prevent such cooperation and a high degree of suspicion among enforcers.

In the United States, penalties were calculated and assessed, but the Antitrust Division seemed content with the $10 million statutory maximum, and little thought was given to invoking the relatively new “twice the gain, twice the loss” alternative fine statute, 18 U.S.C. ยง 3571(d). Some defendant executives faced short jail sentences, but many executives steered through the system successfully with probation or home detention sentences. In Europe, corporate fines were assessed regularly, but the fines were within the range that corporations could reasonably afford. Cartel cases in other countries were rare and very limited. Only a few visionaries-such as El

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