Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Friday, February 26, 2010

Criminalisation of Cartel Behaviour

Posted by D. Daniel Sokol

David King (Ministry of Economic Development, New Zealand) explores Criminalisation of Cartel Behaviour.

ABSTRACT: This paper considers the case for criminalisation of hard-core cartel behaviour. Two frameworks are applied for considering the issue: retributive justice and deterrence (so as to minimise the social loss). The conclusion is reached that hard-core cartel behaviour has a serious moral dimension and that criminalisation of the offence is justifiable when a retributive approach is taken. It is also concluded that criminalisation is likely to be optimal from a deterrence perspective; this is due to the disutility created by stigma and loss of liberty and to the problems with alternatives such as corporate and individual fines, leniency programmes, and rewards to whistleblowers. Arguments against criminalisation relating to judicial processes and incentives on business are found to be unpersuasive. Achieving broad community support is critical, however. An addendum brings the paper up to date with developments in Australia.

http://lawprofessors.typepad.com/antitrustprof_blog/2010/02/criminalisation-of-cartel-behaviour-.html

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