Sunday, November 27, 2011
Posted by D. Daniel Sokol
Kent Bernard (Fordham Law) offers A Trip Around the Cartel Victims Remedy Buffet.
ABSTRACT: The debate about whether the European Union should adopt a community-wide system to compensate victims of illegal cartel activityx has generated a lot of heat, but perhaps less enlightenment, over the past years. Some people are arguing for grafting a U.S. style class action litigation system onto the EU structure, somehow modifying that U.S. graft to avoid the costs of the U.S. system while all the while preserving and reflecting European cultures and traditions.
Almost no one suggests that we should be encouraging the formation or longevity of cartels. And it is certainly a legitimate question to see how better to provide a way for the victims of illegal cartel behavior to be made whole. But while cartels are bad, they are not the only bad things out there. Do we need to be looking at a remedy that has a wider application? Or is there no need for any new remedy at all? There is a respectable argument that, in the time since this flirtation with the U.S. litigation structure for cartel damages began in 2005, market forces and the availability of actions in the national courts have begun to fill the perceived gap and that the best approach here would be to let that process continue. Others point out that areas such as alternate dispute resolution remain underexplored. And there may be something else out there that deserves consideration.