Leniency policies and criminal sanctions in anti-cartel enforcement: an unhappy marriage?

Speaker: Caron Beaton-Wells (University of Melbourne)
Chair: Dr Florian Wagner-von Papp (UCL)

About the talk

Leniency policies and criminal sanctions have each separately dominated the discourse and, to a significant extent, the practice of anti-cartel enforcement by competition authorities across the globe over recent years. The dual emergence of leniency and criminalisation policies in the field of competition law is not a coincidence. However, the reasons for and implications of this development are under-explored. This presentation will examine different explanations for the dynamics in the cartel leniency-cartel criminalisation relationship and, in particular, explanations that address the question as to whether the relationship suggests a predominantly instrumental justification for criminalisation (that is, using criminal sanctions to bolster leniency policies), as distinct from a more normative justification (that is, using criminal sanctions to reflect and punish the harmful and delinquent nature of cartels). Whichever explanation is favoured, the relationship should be seen as problematic, replete with ambiguities, tensions and contradictions that may threaten the legitimacy and effectiveness of both competition and criminal law enforcement. In making this case, the presentation will canvas the weaknesses in the assumptions made about the effectiveness of leniency policies bolstered by criminal sanctions; the retributive compromise and foreclosure inherent in a leniency-driven strategy of enforcement; the ways in which leniency policy underscores and may even reinforce the otherwise immoral (cheating) behaviour said to attract the moral opprobrium associated with criminal sanctions; the ways in which leniency policy shapes and distorts the relationship between cartelists as prospective leniency applicants and competition authorities; and the potential for leniency policy to be ‘gamed’ by cartelists and the associated risk of business capture of the legal process. The presentation draws on a chapter, co-authored by Caron Beaton-Wells, Christopher Harding and Jennifer Edwards, for a book co-edited by Caron Beaton-Wells and Christopher Tran, entitled “Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion”, recently published by Bloomsbury.

About the speaker

Caron Beaton-Wells is a Professor specialising in competition law at the Melbourne Law School, University of Melbourne and Director of the University’s Competition Law & Economics Network. Her research and teaching in this field extends beyond the law to institutional, political and sociological dimensions of competition regulation, and her recent research projects have focussed on cartel enforcement, supermarket power, petrol pricing and the interface between competition and consumer law. Her engagement activity involves contributing to the public discourse in Australia and around the world on significant competition law-related issues and on bringing together and fostering constructive debate and shared learning amongst stakeholders. Caron is a member of several national and international editorial and advisory boards, has consulted to the OECD, ASEAN, SSNED and the New Zealand Government, is a non-governmental advisor to the ICN and the Law School’s representative on UNCTAD’s Research Partnership Platform. Formerly a solicitor at (now) King & Wood Mallesons, Caron is also a member of the Law Council of Australia’s competition and consumer committee and a member of the Victorian Bar.