In this issue:
Global Cartel Enforcement
he South African Department of Trade and Industry (“DTI”) has proposed significant amendments to the South African Competition Act (“Act”). These amendments focus on the powers of the Competition Commission (“Commission”) to investigate and prosecute prohibited practices by firms operating in South Africa. The DTI was motivated by concerns expressed in Parliament about the recent spate of high profile cases involving anticompetitive conduct by companies (such as Tiger ConsumerBrands (bread) , Adcock Ingram (pharmaceuticals), and Clover (milk)) supplying basic goods to poor and vulnerable consumers.
This paper considers both the existing civil regime for enforcing prohibitions on cartel behavior, as well as noting certain aspects of the foreshadowed criminal sanctions.
Until recently, the Korea Fair Trade Commission had focused most of its resources on ex ante regulation of “chaebol” (i.e., large business groups) in addition to areas that involve unfair trade and subcontracting practices disputes between companies. However, starting in 2000 the KFTC has been successful in reforming the MRFTA and its practices.
U.S. Cartel Enforcement
The purpose of this article is to assess the efforts of the U.S. Department of Justice’s Antitrust Division (“DOJ”) to detect and penalize criminal price fixing, which is nearly equivalent to prosecutions of hard-core cartel conduct. To do so, I collected scores of indicators of policy performance that cover the years 1990 to 2007.
These are dangerous times for corporate executives. In times of economic downturn and financial dislocation, the temptation for corporate executives to embrace a short-term fix to raise prices and allocate markets is almost irresistible. An historical review of economic downturns provides powerful testimony that the major global cartels, ranging from lysine and citric acid to vitamins and graphite electrodes, had their origins at moments of economic stress.
Change may be the catchphrase of this year’s U.S. election cycle, but continuity will be the reality for U.S. cartel enforcement. Regardless of whether Republican Senator John McCain or Democratic Senator Barack Obama wins the election in November, the virtual hydraulic press of high-profile and vigorous cartel investigations and prosecutions will continue.
European Cartel Enforcement
The authors argue that the Commission will have to be flexible and provide the incentives to make the system work. In the meantime, parties must carefully consider their strategic options and balance their approaches in order not to jeopardize their strategy for a response to a full Statement of Objections (“SO”) if settlements go wrong.
Recent Developments in Cartel Enforcement at EC and UK Levelsâ€”Adjusting the Mix of Carrots and Sticks
The detection and prosecution of cartels continues to be a key competition enforcement priority of the European Commission (“Commission”) and continues to grab headlines. In 2007 the Commission imposed the highest cartel fines in its history close to a billion on members of the elevators and lifts cartel and 2008 to date has seen six dawn raids launched in relation to alleged cartel conduct involving over 30 undertakings.