Monday, August 4, 2014
Anne Riley and I have a new paper in which we are Rethinking Compliance.
ABSTRACT: This article addresses optimal deterrence and its limits in the context of creating a more effective mechanism for antitrust compliance to take hold in businesses. We suggest the need for the creation proactive encouragement of compliance programs, and possibly a consideration of the desirability of incentives for companies to create and to continue to invest in robust and credible compliance systems. Antitrust authorities should work with the business community to create a regulatory scheme that rewards good behavior while punishing bad behavior. To do so, antitrust authorities need to understand how to create and sustain compliance efforts within a company. The proper role of an antitrust compliance program should be to ensure compliance with the law and to promote ethical behaviour by and between companies as part of good corporate governance. Antitrust authorities should play a role in encouraging and supporting this, in the same way other enforcement authorities do (for example in relation to FCPA / anti-bribery enforcement). We argue that from a policy perspective, antitrust enforcement should not just be about punishment but about changing normative values within organizations.