Competition Law and Transnational Private Regulatory Regimes: Marking the Cartel Boundary

Abstract:     
Cartels today are prohibited under competition regimes around the world, although seen historically (in Europe at least) as a public good to be tolerated or even encouraged by governments. Despite the prohibition, illegal cartels are still prevalent, and there are circumstances where cartel-like conduct is allowed under competition rules. This article explores the extent to which such conduct can be both subject to one regulatory regime (competition law) while also carrying out regulatory functions, and hence can be construed as transnational private regulatory regimes (TPRERs). There are three categories of cartel-like arrangements: private contractual arrangements that fall outside the realm of competition law; self-regulatory arrangements designed to exclusively advance the interests of regulatees; and hybrid regimes where private arrangements have been co-opted as a form of regulation which operate in the shadow of competition law and are often seen as advancing competition objectives.

Number of Pages in PDF File: 19

Accepted Paper Series