Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion

Description

Leniency policies are seen as a revolution in contemporary anti-cartel law enforcement. Unique to competition law, these policies are regarded as essential to detecting, punishing and deterring business collusion – conduct that subverts competition at national and global levels. Featuring contributions from leading scholars, practitioners and enforcers from around the world, this book probes the almost universal adoption and zealous defence of leniency policies by many competition authorities and others. It charts the origins of and impetuses for the leniency movement, captures key insights from academic research and practical experience relating to the operation and effectiveness of leniency policies and examines leniency from the perspectives of corporate and individual applicants, advisers and authorities. The book also explores debates surrounding the intersections between leniency and other crucial elements of the enforcement system such as compensation, compliance and criminalisation. The rich critical analysis in the book draws on the disciplines of law, regulation, economics and criminology. It makes a substantial and distinctive contribution to the literature on a topic that is highly significant to a wide range of actors in the field of competition law and business regulation generally. From the Foreword by Professor Frederic Jenny ‘ … fundamental questions are raised and thoroughly discussed in this book which is undoubtedly the most comprehensive scholarly work on leniency policies produced so far … [the] book should be required reading for all seeking to acquire a deeper insight into the issues related to leniency policy. It is a priceless contribution ... ’ Cover Half-title Title Copyright Foreword Contents List of Contributors Part I: Introduction 1. Leniency Policies: Revolution or Religion? I. BACKGROUND II. AIMS OF THIS BOOK III. STRUCTURE OF THE BOOK IV. REFLECTIONS Part II: Leniency Convergence and Divergence 2. Leadership of Leniency I. INTRODUCTION II. THE HISTORY AND PROLIFERATION OF THE UNITED STATES LENIENCY POLICY III. BUILDING AN EFFECTIVE LENIENCY POLICY IV. TRANSPARENT POLICIES: THE KEY TO CONTINUED LENIENCY SUCCESS V. CONCLUSION 3. Leniency Policy with Chinese Characteristics I. INTRODUCTION II. THE THEORETICAL RATIONALE FOR LENIENCY IN CARTEL ENFORCEMENT III. COMPETITION LAW AND LENIENCY COME TO CHINA IV. CHINESE LENIENCY IN PRACTICE V. CONCLUSION Part III: Leniency and the Competition Authority 4. What do we know about the Effectiveness of Leniency Policies? A Survey of the Empirical and Experimental Evidence I. INTRODUCTION II. EMPIRICAL EVIDENCE ON LENIENCY POLICIES III. EXPERIMENTAL EVIDENCE ON LENIENCY POLICIES IV. CONCLUSION 5. Anti-Cartel Enforcement in Japan: Does Leniency Make the Difference? I. INTRODUCTION II. THE JAPANESE LENIENCY PROGRAMME III. A SIMPLE, CLEAR AND TRANSPARENT LENIENCY PROGRAMME IV. THE LENIENCY PROGRAMME: APPLICATIONS AND FINAL DECISIONS V. THE JAPANESE LENIENCY PROGRAMME AND DETECTION VI. THE JAPANESE LENIENCY PROGRAMME AND DETERRENCE VII. THE LENIENCY PROGRAMME’S CONTRIBUTION TO A DIVERSIFIED ENFORCEMENT POLICY VIII. CONCLUSION 6. Leniency, Profi ling and Reverse Profiling in Multi-Product Markets: Strategic Challenges for Competition Authorities I. INTRODUCTION II. BACKGROUND III. LITERATURE IV. SUMMARY OF THE MODEL V. IMPLICATIONS FOR PROFILING VI. CONCLUSION APPENDIX A: FORMAL STATEMENT OF THE MODEL APPENDIX B: PROOF 7. A Case for Capping the Dosage: Leniency and Competition Authority Governance I. INTRODUCTION II. THE DOJ LENIENCY REFORMS OF THE 1990S III. LENIENCY SIDE-EFFECTS AND COMPETITION AGENCY GOVERNANCE IV. LENIENCY AS ONE ELEMENT OF A DIVERSIFIED ANTI-CARTEL PROGRAMME V. TOWARD AN INTEGRATED UNDERSTANDING OF ANTI-COMPETITIVE CONDUCT Part IV: Leniency and the Corporation 8. Leniency Decision-Making from a Corporate Perspective: Complex Realities I. INTRODUCTION II. THE THEORETICAL UNDERPINNINGS OF LENIENCY POLICIES III. LENIENCY AS A RATIONAL CHOICE IV. DO LENIENCY POLICIES DESTABILISE AND DETER CARTELS? V. IS THERE REALLY A ‘ RACE ’ TO THE COMPETITION AUTHORITY? VI. CONCLUSION 9. Leniency: The Poisoned Chalice or the Pot at the End of the Rainbow? I. INTRODUCTION II. GENERAL FEATURES OF THE EU LENIENCY REGIME III. ‘SETTLEMENTS’ OF EU CARTEL CASES IV. PROS AND CONS OF APPLYING FOR LENIENCY V. PROCEDURAL CONCERNS LINKED TO THE PROCESS OF APPLYING FOR LENIENCY VI. THE (UNDUE) WEIGHT GIVEN TO LENIENCY STATEMENTS VII. CRITERIA TO ASSESS PROBATIVE VALUE VIII. CONCLUSION 10. Reconditioning Corporate Leniency: The Possibility of Making Compliance Programmes a Condition of Immunity I. INTRODUCTION II. COMPLIANCE PROGRAMMES AND CURRENT CORPORATE LENIENCY POLICIES III. THE LAXITY OF CURRENT CORPORATE LENIENCY POLICIES IV. THEORIES OF OPTIMAL INCENTIVISATION OF CORPORATE ACTION V. MAKING AN ADEQUATE COMPLIANCE PROGRAMME A CONDITION OF CORPORATE LENIENCY VI. CONCLUSION Part V: Leniency and the Individual 11. Leniency, Whistle-Blowing and the Individual: Should We Create Another Race to the Competition Agency? I. INTRODUCTION II. WHY TWO RACES ARE INSUFFICIENT TO DETER CARTELS III. ENCOURAGING A THIRD RACE— BETWEEN THE CARTEL PARTICIPANTS AND WHISTLE-BLOWERS IV. CONCLUSION Part VI: Leniency and Crime 12. Leniency and Criminal Sanctions in Anti-Cartel Enforcement: Happily Married or Uneasy Bedfellows? I. INTRODUCTION II. LENIENCY AND CRIMINALISATION—WHICH THE CART AND WHICH THE HORSE? III. LENIENCY AND CRIMINALISATION: TENSIONS, AMBIGUITIES AND CONTRADICTIONS IV. CONCLUSION Part VII: Leniency and Compensation 13. Why Leniency does not Undermine Compensation I. INTRODUCTION II. LENIENCY AND COMPENSATION: THE MECHANICS III. CORRECTIVE JUSTICE: THE BROAD VIEW IV. ANTITRUST AS A COMPENSATORY SYSTEM 14. Leniency and the Two Faces of Janus: Where Public and Private Enforcement Merge and Converge I. INTRODUCTION II. COMPENSATION AND OPTIMAL DETERRENCE III. REASSESSING THE MYTHS FROM A WELFARE-BASED PERSPECTIVE IV. BEYOND THE PURELY ECONOMIC WELFARE PERSPECTIVE: TOWARDS A MORE PLURALISTIC APPROACH V. CONCLUSION Part VIII: Leniency and Compliance 15. The Air Cargo Cartel: Lessons for Compliance I. INTRODUCTION II. METHODOLOGY III. BACKGROUND IV. LUFTHANSA CASE STUDY V. CONCLUSION 16. Combining Leniency Policies and Compliance Programmes to Prevent Cartels I. INTRODUCTION II. AN OVERVIEW OF COMPLIANCE AND ETHICS PROGRAMMES III. THE RELATIONSHIP BETWEEN LENIENCY AND COMPLIANCE IV. COMPETITION AUTHORITIES AND COMPLIANCE PROGRAMMES V. THE CASE FOR INCORPORATING COMPLIANCE PROGRAMMES INTO LENIENCY POLICIES VI. CONCLUSION Index