Private Enforcement Against International Cartels in Latin America: A U.S. Perspective
COMPETITION LAW AND POLICY IN LATIN AMERICA, Hart, Forthcoming
40 Pages Posted: 14 Apr 2008 Last revised: 27 Sep 2008
Date Written: April 1, 2008
This is a book chapter forthcoming in Competition Law and Policy in Latin America (Hart), which will collect papers presented at a conference at the FGV Law School in Sao Paulo, Brazil, in April 2008. The paper seeks to motivate the development of private anti-cartel enforcement in Latin America in light of the U.S. Supreme Court's 2004 decision to foreclose federal court jurisdiction over claims by foreign purchasers from international cartels. It summarizes the state of anti-cartel enforcement in key Latin American jurisdictions, concluding that current efforts are inadequate and would be stimulated by the development of private enforcement. The paper argues that any jurisdiction that is serious about private anti-cartel enforcement must address three primary issues: (1) claim aggregation; (2) discovery rights; and (3) judicial competence. However, the solutions need not be to follow much-criticized techniques used in the U.S. such as class actions and very liberal discovery rights. Finally, the paper addresses some of the benefits and limitations of private enforcement.
Keywords: antitrust, enforcement, competition law, comparative law
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