Monday, January 15, 2007
Posted by D. Daniel Sokol
The judiciary is an often overlooked part of the larger antitrust system. The judiciary is a separate antitrust institution because of its role in the implementation of competition through judicial review of agency determinations, whether those of sector regulators or an antitrust agency. Agencies that have spent significant time and resources in identifying anti-competitive conduct, investigating and prosecuting such conduct can have their actions second guessed by adjudicators. The judiciary therefore has powers to ensure that agency actions are upheld and enforced through the collection of penalties. A system in which the judiciary acts as a bottleneck to enforcement creates a situation in which effectively condones anti-competitive conduct.
In both civil and common law systems, the judiciary plays a key role in implementing laws by providing for the scope and coverage of the antitrust law. It also exercises review of the enforcement actions of the antitrust agency or sector regulator. In this sense, the judiciary may be the most important institutional capacity in a given country after the antitrust agency itself given the power of the courts to support or stymie antitrust through their review of agency actions.
In an excellent new paper, David Gilo of Tel Aviv University Law School (forthcoming in the Israel Law Review) examines the lack of economic analysis