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Criminal Sanctions –
The Leniency Conundrum
Professor Caron Beaton-Wells
University of Melbourne
OECD Global Forum on Comp...
Instrumental
justifications?
30 countries
have
criminalised
cartel conduct
Since the late 1990s…
Normative
justifications?
Coincidence?
50 countries
have adopted
leniency
policies
30 countries
have
criminalised
cartel conduct
Since the late 1990...
By recognizing
interdependencies among
elements [of an enforcement
system], it is possible to
understand more clearly how ...
CRIMINALISATION AND LENIENCY –
INSTRUMENTAL CONSIDERATIONS
Do criminal sanctions
increase leniency
applications?
Cartel detection
Do criminal sanctions mean
more cooperation and
evidence from individuals?
Cartel investigation
Does testimony from
leniency witnesses assist
secure convictions?
Cartel prosecution
Does testimony from leniency
witnesse...
Do criminal sanctions mean
more cooperation and
evidence from individuals?
Cartel deterrence
Do criminal sanctions and
len...
CRIMINALISATION AND LENIENCY –
NORMATIVE CONSIDERATIONS
Impact on public support
and system legitimacy?
- Stephan & Nikpay, 2015; Beaton-Wells et al, 2010
Country % public suppor...
Impact on normative compliance
by the business sector?
Impact on consistency in policy
and practice?
NO
• Cartelists cheat the market and the public by fixing
prices, etc
YES
• ...
14
Criminal sanctions and leniency
policies -
Key questions
1. Does the combination enhance or detract
from the detection,...
Criminal sanctions and
leniency policies - unnatural
allies in the war against
cartels?
15
Comments and questions welcome
16
c.beaton-wells@unimelb.edu.au
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Sanctions in Anti-trust cases – Prof. Caron BEATON-WELLS – University of Melbourn - November 2016 OECD discussion

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This presentation by Prof. Caron BEATON-WELLS from the University of Melbourn, Australia was made during the discussion on "Sanctions in Anti-trust cases" held at the 15th Global Forum on Competition on 2 December 2016. More papers and presentations on the topic can be found out at www.oecd.org/competition/globalforum/competition-and-sanctions-in-antitrust-cases.htm

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Sanctions in Anti-trust cases – Prof. Caron BEATON-WELLS – University of Melbourn - November 2016 OECD discussion

  1. 1. Criminal Sanctions – The Leniency Conundrum Professor Caron Beaton-Wells University of Melbourne OECD Global Forum on Competition Sanctions in Antitrust Cases – Session IV 1-2 December 2016
  2. 2. Instrumental justifications? 30 countries have criminalised cartel conduct Since the late 1990s… Normative justifications?
  3. 3. Coincidence? 50 countries have adopted leniency policies 30 countries have criminalised cartel conduct Since the late 1990s…
  4. 4. By recognizing interdependencies among elements [of an enforcement system], it is possible to understand more clearly how an adjustment in one element affects others… - William Kovacic (2011)
  5. 5. CRIMINALISATION AND LENIENCY – INSTRUMENTAL CONSIDERATIONS
  6. 6. Do criminal sanctions increase leniency applications? Cartel detection
  7. 7. Do criminal sanctions mean more cooperation and evidence from individuals? Cartel investigation
  8. 8. Does testimony from leniency witnesses assist secure convictions? Cartel prosecution Does testimony from leniency witnesses help to secure convictions?
  9. 9. Do criminal sanctions mean more cooperation and evidence from individuals? Cartel deterrence Do criminal sanctions and leniency combined increase deterrence?
  10. 10. CRIMINALISATION AND LENIENCY – NORMATIVE CONSIDERATIONS
  11. 11. Impact on public support and system legitimacy? - Stephan & Nikpay, 2015; Beaton-Wells et al, 2010 Country % public support for leniency United States 51 United Kingdom 53 Germany 46 Italy 46 Australia 25
  12. 12. Impact on normative compliance by the business sector?
  13. 13. Impact on consistency in policy and practice? NO • Cartelists cheat the market and the public by fixing prices, etc YES • Cartelists cheat each other by deviating from the cartel YES • Cartelists cheat each other by applying for leniency NO • Cartelists cheat on the competition authority by not reporting and cooperating fully
  14. 14. 14 Criminal sanctions and leniency policies - Key questions 1. Does the combination enhance or detract from the detection, investigation, prosecution and ultimately deterrence of cartels? 2. Does the combination enhance or detract from the role and force of the criminal law in labelling and punishing cartel conduct as criminal?
  15. 15. Criminal sanctions and leniency policies - unnatural allies in the war against cartels? 15
  16. 16. Comments and questions welcome 16 c.beaton-wells@unimelb.edu.au

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