The Antitrust Review of the Americas 2009

Global Cartel Enforcement: Recent Developments and their Implications

During the past year competition authorities worldwide have continued to identify cartel enforcement as their highest priority. Amnesty or leniency policies have continued to play a central role in cartel enforcement. Their utilisation by several major jurisdictions is now well established, and cooperation among enforcers across the globe is common. US and EC enforcers continue to win substantial fines in cartel matters, and the importance of compliance and preparedness efforts by multinational businesses is greater than ever. The developments discussed in this article are consistent with, and in some cases flow from, the continued success of amnesty policies and coordination among enforcement authorities in Europe, Asia, and the Americas. As has been true for several years, the incentives created by amnesty policies have continued to prompt corporate self-reporting in cartel matters, and the 'domino effect' of the amnesty plus concept has spawned successive investigations across distinct product lines in large industries. In the United States, the steady upward ratcheting of corporate and individual sentences began to highlight two challenging issues. One, calculation of the volume of commerce to be used in determining corporate fines, can be complicated by the multinational character of certain cartelised markets. A second issue, pertaining to individual prison sentences, can be raised by the tension between the DoJ's demand for higher minimum sentences under the 2004 statutory amendments, and the Sentencing Guidelines' call for proportionality in the relationship between sentences. Moreover, cross-currents in the rising enforcement tide, identified in last year's article, persisted. The Department of Justice lost another criminal case, which highlighted again the hazards of reliance on immunised, cooperating witnesses especially in cases arguably lacking in unambiguous evidence of agreement. In the United Kingdom, on the other hand, the see-saw battle of Ian Norris against extradition to the United States recently tilted in favour of the prosecution. Although Norris won an important appeal when the House of Lords ruled in his favour, on referral the lower court has now ruled that extradition may be sought on obstruction of justice charges that were joined with the antitrust charges in the case. If sustained this ruling has important implications for the DoJ and defence counsel going forward. In addition, the long running Stolt-Nielsen case yielded a potentially significant ruling on possible disclosure of amnesty agreements under the Freedom of Information Act.

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