Friday, May 27, 2011

Beaton-Wells and Ezrachi Respond to the Blog Symposium on Criminalising Cartels

Posted by Caron Beaton-Wells and Ariel Ezrachi

We are grateful to the reviewers for their reflections on Criminalising Cartels: Critical Studies of an International Regulatory Movement (Hart, 2011) and to Danny for convening the symposium on the book.

One of the objectives of the book was to challenge some of the key assumptions or assertions commonly made in advocacy for criminal cartel enforcement. As confessed supporters for criminalisation, two of the book reviewers reported that the book indeed had succeeded in challenging their assumptions – particularly as to the acclaimed deterrence impact of criminal sanctions. For an author or editor, first-hand feedback of this nature is highly gratifying. Each of the reviewers also reflected in their comments important themes from the book, such as the challenges involved in criminal enforcement, the cultural specificity of a criminal regime and the significance of criminalisation’s moral dimensions.

If there was one particular insight from the reviews on which we would like to comment, it was the suggestion by Anestis Papadopoulos that, for developing countries new to competition law, criminalisation should be deferred until other foundational conditions for an effective antitrust system have been bedded down (political support and incorporation into academic curricula are two such conditions mentioned). No doubt this would resonate with many who have witnessed or studied the challenges associated with legislating and building capacity for competition law and enforcement in developing countries. However, there is an alternative perspective. It might alternatively be argued that there is greater scope to provide for criminal sanctions when a competition law regime is first introduced than subsequently, once that regime is well-established. Provision for criminal sanctions from the start might offer a effective mechanism for communicating the importance attached by political leaders and policy-makers to competition as a path to economic progress, productivity and prosperity. In this way, criminalisation may be used to transmit an ideological message, should such transmission be seen as necessary or desirable. We appreciate, of course, that there are additional practical factors to be considered in relation to any such proposal. However, it is useful to recognise that criminalisation may be employed as much a tool of ideology as a weapon of enforcement.”

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