The Antitrust Review of the Americas 2009

Developments in International Leniency Agreements: 2007 to 2008

In the 15 years since the US Department of Justice Antitrust Division (the Division) modified its corporate leniency policy, the Division has identified, investigated and prosecuted hard-core price-fixing and bid-rigging cartels involving numerous firms operating globally, in markets with billions of dollars of commerce. Numerous other countries learned from the Division's success and implemented amnesty and leniency programmes with considerable but uneven success. Many early versions of amnesty and leniency policies suffered from a lack of clarity and predictability of whether and how an applicant would benefit, hindering their usefulness in drawing applicants. Competition agencies in a number of countries have recently made changes to their immunity or leniency policies to address concerns and strengthen their utility in identifying cartel behaviour. We discuss herein some recent developments in international immunity and leniency programmes. United States - Stolt-Nielsen retains its amnesty grant but aggressive cartel enforcement efforts continue The end of the Stolt-Nielsen saga The Division's attempt to revoke its amnesty grant to Stolt-Nielsen has finally ended. In January 2003, the Division and Stolt-Nielsen entered into a conditional leniency agreement related to price fixing among firms operating in the tanker-shipping industry. Several months after the leniency agreement was signed, the Division notified Stolt-Nielsen that it had obtained evidence that the company had not terminated its participation in the conspiracy upon discovery of the unlawful conduct in early 2002. (The Division believed Stolt-Nielsen only terminated its participation many months later when it approached the Division seeking amnesty, and that Stolt-Nielsen thereby breached the leniency agreement requirement that the leniency applicant terminate the unlawful conduct promptly upon discovery of the activity.) In March 2004, the Department revoked Stolt-Nielsen's amnesty and threatened to indict the company. In January 2005, upon Stolt-Nielsen's urging, a district court disagreed with the Division's interpretation of the agreement and enjoined the Division from prosecuting Stolt-Nielsen for participation in the conspiracy; in the court's view, Stolt-Nielsen had obtained immunity up to the date of the leniency agreement. That opinion was overturned by the Third Circuit in 2006, however, on separation of power grounds.1 In September 2006, Stolt-Nielsen was indicted for its role in the price-fixing conspiracy. The district court this time dismissed the indictment, finding that Stolt-Nielsen had not breached its agreement with the Division and, in a lengthy opinion providing its own assessment of the facts, referred to the Division's prosecution as 'fundamentally unfair.'2 The Division announced shortly after that it would not appeal the decision.3 The Division has responded to the litigation by making some changes to its model leniency agreement to attempt to eliminate the ambiguity of the earlier agreement.4 However, the Division does not intend to modify its practice of granting conditional amnesty in favour of delaying the grant until completion of its investigation.5 The Division does not want to make any changes which could affect the transparency and predictability of the programme that, in turn, likely would lead to less participation in the programme. Recent international cartel prosecutions Two significant international cartel prosecutions in 2007/2008 demonstrate that the Division's enforcement programme is alive and well. First, through August 2008, the Division's investigation of air-cargo and passenger firms has netted nine global air-carriers; those firms have paid, or agreed to pay (pending court approval) over US$1.27 billion for participating in cartels involving cargo and passenger transportation. Two executives have also pled guilty to participating in the scheme, and will serve jail terms of six and eight months.6 Two airlines - Virgin Atlantic and Lufthansa AG - were conditionally accepted into the Division's amnesty programme after reporting their involvement with British Airways and, additionally in Lufthansa's case, Korean Air. Second, in a exemplar of the joint efforts of sister enforcement agencies around the world, on 2 May 2007, eight executives from six companies from offices in four countries - the United Kingdom, France, Italy and Japan - were arrested in the US and charged with participating in a conspiracy to rig bids, fix prices and allocate markets for the sale of marine hose in the US.7 (In time, a German national was charged with participating in the conspiracy.8) At the time of the May arrests, the UK Office of Fair Trading and the European Commission executed search warrants in several countries in Europe.9 Japan's Fair Trade Commission searched locations in Japan in its own investigation of the industry; and, in November 2007, Brazil's SDE announced it was investigating the same cartel.10 Canada is also participating in the investigation.11 In the United States, the investigation has led to the indictment or arrest of 12 individuals through August 2008; seven of those individuals have agreed to serve jail sentences ranging from 12 to 30 months; another individual has agreed to let the court decide his sentence. The remaining four individuals are awaiting trail.12 In an unprecedented action, after being sentenced in the US, the three UK defendants were returned to the United Kingdom to face charges of, and be sentenced for, violations of the UK's Enterprise Act.13 (Cooperation with the Office of Fair Trading was a requirement of the individual's plea agreement.)14 The UK court sentenced the three men to terms of 30, 36 and 36 months in jail; time served in the UK will be credited towards the men's US sentences (of 20, 24 and 30 months) and thus upon completion of their UK sentences, the three individuals will not serve time in the United States.15 The charges were the first criminal cartel charges under the Enterprise Act. European Union - legislative and regulatory evolutions The 2006 Leniency Notice December 2006 saw the introduction in the EU of a revised leniency notice.16 The 2006 Leniency Notice is the European Commission's (the Commission) third leniency notice - earlier versions were released in 1996 and 2002. The amendments are fully in line with the European Competition Network's (ECN) Leniency Programme, also adopted in 2006. The improvements brought to the 2006 Leniency Notice include clarification of the thresholds for immunity and for the reduction of fines and of the conditions that must be fulfilled by applicants, as well as amendments to the procedure, such as the introduction of a discretionary marker system for the first applicant. Changes include the following: the immunity thresholds now clearly and explicitly set out what type of information and evidence the applicants should submit to qualify for immunity. It also makes clear that the applicants need to disclose their own participation in the cartel; the conditions for immunity and reduction of fines are now more explicit. Indeed, the revised notice introduces flexibility as to the point in time when applicants need to terminate their participation in their cartel activities. It highlights the fact that genuine cooperation requires the applicant to provide accurate and complete information that is neither misleading nor deemed incomplete. The obligation not to destroy, falsify or conceal information is extended to cover the period during which the applicant was considering submitting an application; and the 2006 Leniency Notice introduces a marker system for immunity applicants. This allows an immunity application to be accepted on the basis of limited information only. The applicant is then granted additional time to muster the information and evidence to qualify for definitive immunity. The 2006 Leniency Notice is not the only legal instrument where the Commission takes into account the cooperation of an under-taking faced with an investigation. In June 2006, the Commission also adopted new guidelines on the method of setting fines for undertakings that have infringed articles 81 and 82 of the EC Treaty. These guidelines, updating the 1998 guidelines, explicitly reference and consider the cooperation of an undertaking outside the scope of the 2006 Leniency Notice. Thus, it is provided that the basic amount of a fine may be reduced where the Commission finds mitigating circumstances, such as when the undertaking concerned has actively cooperated with the Commission's investigation outside the scope of the 2006 Leniency Notice. This was taken into account by the Commission in its Raw Italian Tobacco decision. In Raw Italian Tobacco, the Commission fined four Italian tobacco processors a total of €56 million for colluding over a period of more than six years on prices paid to growers (and other intermediaries) and on the allocation of suppliers. Deltafina, one of the undertakings fined, received a €30 million fine after being stripped of its conditional antitrust immunity. The removal of the immunity was caused by a serious breach of Deltafina's obligation to cooperate: having received conditional immunity, Deltafina, prior to the Commission conducting surprise inspections, revealed to members of the cartel that it had applied for leniency. Although Deltafina was not awarded full immunity, the Commission decision acknowledged Deltafina's actual contribution to the establishment of the processors' violation and considered this to support a 50 per cent reduction of the fine which would otherwise have been imposed. Deltafina appealed the Commissions decision to revoke its conditional immunity grant; the appeal is still pending (as of August 2008). White Paper on damages actions The Commission's willingness to promote its leniency procedure can also clearly be seen in its April 2008 White Paper on damages actions. The White Paper suggests a new model for achieving compensation for consumers and businesses that are victims of antitrust violations. The proposals, which are more modest than many expected, particularly when compared with Commissioner's Neelie Kroes's public statements on the topic and the objectives DG Competition outlined in the Green Paper on 19 December 2005, show the Commission's commitment to preserve a clear and attractive leniency procedure designed to elicit whistle-blowers. One of the main questions raised in the Green Paper was whether leniency applications should be protected against discovery rules. Indeed, should leniency applications be made available to claimants for the purpose of civil actions, the proof of the claim would be facilitated for the claimants, which in turn would contribute to the objective of rendering the victims' right to damages more effective. However, such a disclosure would reduce the attractiveness of a leniency programme, and its efficiency. Indeed, faced with this possibility, potential leniency applicants could be deterred from asking for leniency in the first place. Reflecting on this issue, the Commission has already made a first step in minimising the risk of disclosure of leniency applications in civil actions by following the US approach of accepting oral corporate statements. Such corporate statements are read to the Commission, which transcribes them, hence making the corporate statement a Commission internal document that can be protected from disclosure to claimants or foreign authorities in damages actions. Such informal practice was formally codified by the Commission in its 2006 Leniency Notice. In view of the numerous comments submitted to the Commission on this topic during the consultation on the Green Paper, the Commission has gone one step further and acknowledged in its White Paper that all corporate statements will remain protected irrespective of whether the application is accepted or rejected. Indeed, excluding the discoverability of leniency applications avoids a situation in which a leniency applicant is placed in a less favourable situation than the other infringers due to the fact that it applied for leniency. The Commission considers such a step 'essential to maintain effectiveness of the leniency notice'. Cartel settlement fast track? Commissioner Neelie Kroes stated in March 2007 that the Commission was giving serious consideration to developing an instrument to handle selected cartel investigations more speedily. This was followed by the publication on 2 July 2008 of a Commission notice on the conduct of settlement procedures in cartel cases. The purpose of this notice is to simplify and speed up the administrative procedures in cartel cases in order to increase the efficiency of the Commission's enforcement actions. Under this procedure, parties to a cartel can choose to engage in settlement discussions, after initiation of proceedings and prior to the issuance of a statement of objections by the Commission. Undertakings subject to an investigation and convinced that the Commission has grounds to prove their participation in the cartel may be interested in an expedited procedure and in a reduction of their fine for their cooperation. Within the current institutional and legal framework, the Commission proposes an original system which is different from other existing settlement procedures, such as that already in place in France.17 This direct settlement procedure is to be seen in parallel with the 2006 Leniency Notice. Indeed, upon acceptance and completion of the settlement procedure where the undertaking must formally acknowledge (i) its liability for a defined infringement, (ii) an indication of the maximum fine that the company foresees, and (iii) confirmation that the company will not request access to the file or an oral hearing, the undertaking will receive a 10 per cent reduction of its fine, which will be cumulative with any reduction received under the leniency notice. Concerns have been voiced that this new procedure would undermine the Commission's leniency policy.18 However this is doubtful. Indeed, the maximum reduction of a fine foreseen by the settlement procedure is capped at 10 per cent; the most important reductions are only available under the Commission's 2006 Leniency Notice; therefore the incentive remains for any infringing undertaking to come forward with a leniency application as soon as possible and benefit from full immunity from fines.[> National leniency programmes in the EU The years 2006 and 2007 saw the continuation of the convergence process observed in the context of Regulation 1/2003 between the members of the European Competition Network (ECN). This was most notably demonstrated through the adoption of the ECN Leniency Programme in 2006. Following the adoption of this programme, seven member states (Belgium, Czech Republic, Denmark, France, Italy, Netherlands and Portugal) have already revised their existing programmes to align them with the ECN's Leniency Programme. In addition, the following 12 member states have adopted or are in the process of revising their leniency programmes: Bulgaria, Cyprus, Estonia, Finland, Greece, Hungary, Latvia, Luxembourg, Poland, Romania, Sweden, and Spain. Today, all member states except Slovenia19 and Malta have adopted leniency programmes, compared with only four member states operating such programmes in 2002.20 There is strong pressure from legal practitioners and business to harmonise the different leniency programmes in the member states. However, there is even greater pressure to introduce a 'one-stop shop' policy. Indeed, while the various national leniency regimes have converged significantly, there is still no 'one-stop shop' procedure for leniency applications in the EU. This raises specific problems for undertakings involved in cross-border cartels. Hence, as a leniency application to the Commission or a national competition authority (NCA) does not count as an application to any other authority, and, given that timing is of the essence, the leniency applicant will need to file separate leniency applications simultaneously to as many competition authorities as it believes may be best placed to take action within the meaning of Regulation 1/2003. This feature is without doubt both time-consuming and costly, but also creates a certain degree of legal uncertainty for the applicant as it may not always be possible for this undertaking to be the 'first one in' in every jurisdiction. Developing a 'one-stop shop' for leniency applications within the EU is one of the tasks that the Commission is currently facing. And although no specific procedure is currently being contemplated, the ECN Leniency Programme endeavours to ease the burden associated with multiple filings in cases for which the Commission is particularly well placed by introducing a model for a summary application procedure at the national level. This procedure would apply for immunity applications in cases concerning more than three member states. Such procedure now avoids applicants continuing to have to file full and complete applications in all member states as the NCAs can agree to receive only a short description of the cartel that has been reported to the Commission. To date, 18 NCAs accept such summary applications, which demonstrate their increasing willingness and efforts to speak as one voice.21 Canada - clarifying immunity and leniency policies In October 2007, the Competition Bureau issued revisions to its immunity programme.22 Significant changes are: the adoption of a single step approach to immunity agreements;23 the adoption of a 'coercion' test in place of the previous instigator/leader test in determining whether an applicant is disqualified from receiving immunity;24 the elimination of the requirement that the applicant for immunity make restitution;25 and, no adoption of a 'penalty plus' programme: an applicant's intentional failure to identify all offences under the Canadian Competition Act in which it was or is involved are grounds for revocation of an immunity grant and not simply grounds for a higher penalty.26 To increase cooperation from those not eligible for immunity,27 in April 2008 the Competition Bureau released the Draft Information Bulletin on Sentencing and Leniency in Cartel Cases.28 Where a party does not qualify for immunity, but cooperates with the investigation, the Competition Bureau historically has often recommended the party receive leniency in sentencing and financial penalties.29 However, the factors that went into the recommendation, and their weight, were not fully transparent. The Bulletin explains in significant detail the requirements and commitments necessary to obtain leniency, as well as the process the Competition Bureau undertakes to arrive at its recommendations to the courts for fines and reductions in jail sentences. In considering whether leniency is appropriate, timely cooperation by the applicant is essential, and the evidence provided by the applicant must have value in establishing that the applicant and other participants committed an offence in Canada.30 If leniency is obtained, there are significant benefits: the first leniency applicant may obtain a reduction of up to 50 per cent of fines that would otherwise be appropriate and later applicants may obtain reductions of up to 30 per cent.31 Developments in Brazil - introduction of a cartel settlement programme In Brazil, participation in a cartel is both an administrative and criminal violation.32 In May 2007, after amendments to Law No. 8.884 (Brazil's primary antitrust law), the Ministry of Justice introduced a cartel settlement programme to complement its leniency programme.33 (Brazil's leniency programme provides that there are no administrative penalties for the first company to self-report, and there are no criminal penalties for cooperating directors or managers.34 Eight of 10 recent major cartel investigations were initiated by leniency agreements.)35 The settlement programme allows those not eligible for amnesty to negotiate with the Council for Economic Defence (CADE, Brazil's antitrust administrative tribunal) a settlement of administrative charges, including calculation of an appropriate financial penalty.36 As in most jurisdictions, the earlier in an investigation a party settles, the more likely they will pay a reduced penalty.37 Note that participation in a cartel is also a criminal violation; public prosecutors have sole authority to enforce (and settle) criminal charges. Apart from the case of leniency agreements, where officers and managers of the first company to come forward are completely protected from criminal liability, a settlement with CADE does not guarantee settlement of a criminal charge.38 The criminal settlement has to be negotiated on a case-by-case basis with state and federal prosecutors.39 The Ministry of Justice believes that there is some evidence that settling the administrative investigation with CADE increases the chances of officers and managers to settle a criminal investigation.40 In November 2007, CADE entered into its first settlement of a cartel case: LaFarge Brazil SA, a cement firm, agreed to pay a fine of 43 million reais (approximately US$24 million), cease certain conduct, adopt a compliance programme and allow the Brazilian antitrust authorities access to the company's offices.41 Developments in Asia - the promise of amnesty and leniency programmes China's Antimonopoly Law (AML), which took effect on 1 August 2008, broadly prohibits all monopoly agreements and lists specific prohibited restrictive practices, with catch-all provisions to prohibit any other monopoly agreements as identified by the enforcement authorities.42 Penalties for violations include disgorgement of illegal proceeds and fines ranging from 1 to 10 per cent of turnover from the previous year. Article 46 of the AML lays the foundation for a leniency programme: participants in monopoly agreements (not limited to horizontal agreements) that report their misconduct 'on their own initiative' and 'provide important evidence' to the enforcement authorities may receive reduced penalties or be spared punishment. Mercy, however, remains at the authorities' discretion. Given the experience of other jurisdictions, more transparency and predictability of reductions in fines or other penalties are likely needed before parties are willing to step forward; with no certainty of benefits, it may be more sensible for a firm to wait to see if the authorities come to it. Japan has a statutory based leniency programme with requirements similar to those of the United States; however, it extends only to financial penalties.43 The benefits can be substantial to those who come in prior to the commencement of an investigation, and range from 100 per cent for the first (qualifying) applicant to a 30 per cent reduction for the third applicant. While the statutory foundation for the leniency programme does not address leniency from criminal prosecution, the Japanese Fair Trade Commission (JFTC) has indicated that it will not file criminal charges against the first (qualified) applicant (and officers and employees of the applicant, if those individuals have fully cooperated with the investigation) if the firm applies prior to the initiation of an investigation.44 Indictments against later applicants will be reviewed on a discretionary basis. Although public prosecutors have the power of criminal prosecution against all members of the cartel after an indictment by the JFTC, the Ministry of Justice has indicated it will respect leniency decisions made by the JFTC.45 Korea originally introduced a leniency programme in 1996.46 The programme was amended in 200547 to increase transparency and predictability, and again amended in 2007.48 Leniency has been applied for by one or more firms involved in a number of investigations, including those into price fixing in the flour, resin, and petrochemical industries.49 Singapore's Competition Act specifically prohibits agreements to fix prices, divide markets, restrain output, or rig bids. Acknowledging the effectiveness of leniency programmes in other jurisdictions,50 the Commission has adopted a three-tier leniency scheme allowing significant reductions from financial penalties for qualified applicants.51 On 3 September 2008, the Competition Commission Singapore unveiled proposals to introduce a formal 'marker' system enabling leniency applicants to preserve their place in the leniency line will gathering evidence needed for a formal leniency application, and to adopt a 'leniency plus' policy of rewarding cartel members under investigation for reporting involvement in other cartels with reduced penalties in pending investigations as well as full immunity with respect to the newly disclosed cartels. Taiwan does not have a leniency programme, but a leniency programme has been included in the proposed amendments to the enforcement rules of the Fair Trade Law.52 The Taiwanese FTC has submitted the proposal to the Executive Yuan in January 200753 but as of August 2008 it had not been adopted. Notes 1 Stolt-Nielsen SA v United States, 442 F3d 177, 187 n7 (3d Cir 2006). 2 US v Stolt-Nielsen SA, 524 F Supp 2d 609, 628 (ED Pa 2007). 3 DoJ press release, Justice Department Will Not Appeal Stolt-Nielsen Decision (21 December 2007). 4 See Scott Hammond on Stolt-Nielsen, Global Competition Review (May 2008). 5 Id. 6 For announcements of the various charges and pleas, see the following DoJ press releases: British Airways Plc and Korean Air Lines Co. Ltd. Agree to Plead Guilty and Pay Criminal Fines Totaling $600 Million for Fixing Prices on Passenger and Cargo Flights (1 August 2007); Court Accepts British Airways/Korean Air Lines Plea (23 August 2007); Qantas Airways Agrees to Plead Guilty and Pay Criminal Fines For Fixing Prices on Cargo Shipments (27 November 2007); Japan Airlines International Agrees to Plead Guilty and Pay Criminal Fine For Fixing Prices on Cargo Shipments (16 April 2008); Former Qantas Airline Executive Agrees to Plead Guilty to Participating in Price-Fixing Conspiracy on Air Cargo Shipments (8 May 2008); Major International Airlines Agree to Plead Guilty and Pay Criminal Fines Totaling More than $500 Million for Fixing Prices on Air Cargo Rates (26 June 2008); Former Top SAS Cargo Group A/S Executive Agrees to Plead Guilty To Participating in Price-Fixing Conspiracy (28 July 2008). 7 DoJ press release, Eight Executives Arrested on Charges of Conspiring to Rig Bids, Fix Prices, and Allocate Markets for Sale of Marine Hose (2 May 2007). 8 DoJ press release, German National Charged With Participating in Conspiracy to Rig Bids, Fix Prices, and Allocate Markets for Sales of Marine Hose (Dec. 26, 2007). 9 See Address by Thomas O Barnett, Assistant Attorney General, Antitrust Division, US Department of Justice, Perspectives on Cartel Enforcement in the United States and Brazil (28 April 2008). 10 Id. 11 See Remarks of Sheridan Scott, Commissioner of Competition, Change and Redemption in Cartel Enforcement (29 April 2008) ('hereinafter 'Change and Redemption'). 12 See the following DoJ press releases in addition to those cited at notes 7 and 8: Two Executives Indicted in Conspiracy to Rig Bids, Fix Prices, and Allocate Markets for Sale of Marine Hose (13 September 2007); Two Executives of French Manufacturer of Marine Hose Agree to Plead Guilty to Participating in Worldwide Bid-Rigging Conspiracy (6 November 2007); Three United Kingdom Nationals Charged With Participating in Worldwide Bid-Rigging Conspiracy in the Marine Hose Industry (3 December 2007); Three United Kingdom Nationals Plead Guilty to Participating in the Bid-Rigging Conspiracy in the Marine Hose Industry (Dec. 12, 2007); Former U.S. Executive of Italian Marine Hose Manufacturer Agrees to Plead Guilty to Participating in Worldwide Bid-Rigging Conspiracy (17 April 2008); Italian Marine Hose Manufacturer and Marine Hose Executives Agree to Plead Guilty to Participating in Worldwide Bid-Rigging Conspiracy (28 July 2008). 13 See press release, UK Office of Fair Trading, OFT Brings Criminal Charges in International Bid Rigging, Price Fixing and Market Allocation Cartel (19 December 2007). 14 See Plea Agreements in United States v Peter Whittle, United States v Bryan Allison, and United States v David Brammar at paragraphs 8-9. 15 DoJ press release, Statement of Thomas O Barnett, Assistant Attorney General for the Antitrust Division, on UK Crown Court Sentencing of Marine Hose Executives and Independent Consultant for Bid-Rigging Conspiracy (11 June 2008). 16 OJ C 298/17 of 8 December 2006. 17 The French settlement procedure cannot apply once the authority has issued a statement of objections against the undertaking. 18 EU Settlements Procedure Met with Scepticism, Global Competition Review (30 June 2008). 19 Slovenia is currently revising its competition law in order to introduce a leniency programme. 20 Spain is the latest country to have adopted a leniency programme based on the ECN leniency programme. It came into force on 1 September 2007. 21 This is the case for the Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden and the United Kingdom. 22 Competition Bureau Information Bulletin, Immunity Program Under the Competition Act (October 2007); see also Competition Bureau, Adjustments to the Immunity Program (October 2007). 23 Competition Bureau, Adjustments to the Immunity Program (October 2007), 3-4. 24 Id, 4-5. 25 Id, 6-7. 26 Id, 7-8. 27 Remarks of Sheridan Scott, Change and Redemption ('In order to encourage parties to come forward to seek leniency, we believe it is important to provide as much transparency and predictability as possible regarding the leniency program.') 28 Competition Bureau Draft Information Bulletin on Sentencing and Leniency in Cartel Cases (April 28, 2008). 29 Id, Preface. 30 Id, 16-17. 31 Id, 17-18. 32 International Competition Network Cartel Working Group, Cartel Settlements, Report to the ICN Annual Conference Kyoto, Japan (April 2008) (ICN Cartel Settlements Paper), available at www.icn-kyoto.org/documents/materials/Cartel_WG_1.pdf at 5. 33 See Ministry of Justice, Secretariat of Economic Law, Brazilian Cartel Settlement Program, available at www.mj.gov.br/data/Pages/MJ34431BE8ITEMID3DAD7B1909B2482EB4A0C2456D06789DPTBRIE.htm. 34 See Presentation by Mariana Tavares de Araujo, Secretary of Economic Law, Ministry of Justice, Administrative and Criminal Anticartel Enforcement in Brazil: Two Sides of the Same Coin (April 2008). 35 Id. 36 See Ministry of Justice, Secretariat of Economic Law, Brazilian Cartel Settlement Program. 37 Id. 38 Id. 39 Id. 40 Id. 41 ICN Cartel Settlements Paper, 25. 42 The Chinese language version of the statute is available at www.gov.cn/flfg/2007-08/30/content_732591.htm. An unofficial English translation is available as an appendix to Nathan Bush, The PRC Antimonopoly Law: Unanswered Questions and Challenges Ahead, Antitrust Source (October 2007), www.abanet.org/antitrust/at-source/07/10/Oct07-Bush10-18f.pdf. 43 See article 7-2 of the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade, English translation available at www.jftc.go.jp/e-page/legislation/ama/amended_ama.pdf. 44 See The Fair Trade Commission's Policy on Criminal Accusation and Compulsory Investigation of Criminal Cases Regarding Antimonopoly Violations, available at www.jftc.go.jp/e-page/legislation/ama/policy_on_criminalaccusation.pdf. 45 See account by Hiroshi Obayashi, the Director General of the Criminal Affairs Bureau of Ministry of Justice at www.shugiin.go.jp/itdb_kaigiroku.nsf/html/kaigiroku/009816220050311004.htm (in Japanese, no English translation available); See also http://kokkai.ndl.go.jp/SENTAKU/sangiin/162/0063/16204190063012a.html (in Japanese, no English translation available). 46 See article 22-2 of the Monopoly Regulation and Fair Trade Act at http://eng.ftc.go.kr/files/bbs/2008/MARFTA.rtf. 47 See Fair Trade Commission, Republic of Korea, Annual Report on Competition Policy Development in Korea, January 1, 2005 - December 31, 2005, available at http://eng.ftc.go.kr/bbs.do?command=getList&type_cd=16. 48 See Fair Trade Commission, Republic of Korea, Major Statutory and Policy Changes of 2007, available at http://eng.ftc.go.kr/bbs.do?command=getList&type_cd=15. 49 See Fair Trade Commission, Republic of Korea, Enforcement Matters, Cartels, available at http://eng.ftc.go.kr/bbs.do?command=getList&type_cd=20 50 See Singapore Statutes Online, Competition Act, section 34 (chapter 50B), available at http://statutes.agc.gov.sg/. 51 See Competition Commission Singapore, CCS Guidelines on Lenient Treatment for Undertakings Coming Forward with Information on Cartel Activity Cases, available at www.ccs.gov.sg/NR/rdonlyres/A67B68FC-DB6F-415B-9DF1-5A97FC6855A9/19770/CCSGuideline_LenientTreatment_Jul07FINAL2.pdf. 52 See http://ftc.cnfi.org.tw/proposal/FTC01.pdf (non-Enlish version). 53 See www.ftc.gov.tw/1000010129991231727Out4.pdf (non-English version).

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