Tuesday, June 2, 2009
Avoidance and Denial of Liability for Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation
Posted by D. Daniel Sokol
Brent Fisse (Melbourne Law) discusses Avoidance and Denial of Liability for Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation. Download Fisse_Avoidance_&_Denial_of_Liability_for_Cartel_Offences
ABSTRACT: Cartel litigation and cartel investigation are likely to be shaped to a significant extent by what corporations and managers do proactively in response to the threat of criminal sanctions, civil penalties and liability for damages. It would be a mistake to assume that the prime targets of the new cartel legislation1 – those competitors who cause multi-million dollar losses to consumer welfare by co-ordinating their conduct instead of competing against each other – will be sitting ducks waiting to be shot.
The new cartel offences and civil penalty prohibitions are intended to electrify the deterrence of cartel conduct. However, discussion of the implications for corporate and individual behaviour has been superficial and not always realistic. It is entirely possible that a direct effect will be to induce the more widespread use of anti-competitive methods of doing business that do not involve breaking the law. Corporations and their advisers are adept at managing the law in ways they believe will achieve their perceived interests as distinct from the interests of legislators and enforcement agencies.2 This paper outlines some of the avenues open to corporations and their managers to avoid or deny liability by revising their liability control strategies and doing some re-engineering or personal training to implement those strategies.
Many lawful escape routes are open to those in the corporate sector who do not share the noble aspirations of those responsible for Australian anti-cartel laws. The escape routes are not riskfree
but some conceivably can be made to work.