Criminalizing Cartels: A Global Trend?

Chapter in Research Handbook on Comparative Competition Law, eds. John Duns, Arlen Duke, and Brendan Sweeney (Edgar Elgar, 2015)

Sedona Conference Journal, Vol. 12, 2011

Minnesota Legal Studies Research Paper No. 11-26

37 Pages Posted: 4 Jul 2013 Last revised: 14 Mar 2016

Gregory Shaffer

University of California, Irvine School of Law

Nathaniel H. Nesbitt

University of Minnesota Law School

Spencer Weber Waller

Loyola University of Chicago, School of Law - Institute for Consumer Antitrust Studies

Date Written: July 2, 2013

Abstract

Countries in virtually every region of the world are criminalizing cartel offenses. Many have initiated prosecutions, several have secured convictions, and a few have imposed jail time. Yet outside the United States the enforcement record is hardly uniform, and the debate about cartel criminalization is far from resolved. This situation raises a host of questions. What spurred the trend toward cartel criminalization? Have the changes been driven primarily by criminalization evangelists such as the United States Department of Justice, whether working bilaterally or through transnational networks? Are organic, bottom-up, national processes also at work, suggesting changing moral sensibilities regarding cartel conduct? To what extent have formal legal changes been accompanied by enhanced enforcement? This Chapter tackles these questions through a review of criminalization and enforcement developments in the United States, Europe, and around the world. While the emerging legal landscape of anti-cartel activity is complex and varies significantly by jurisdiction, the clear trend is toward increased criminalization, as well as more robust enforcement, including collaboration among national antitrust authorities through informal transgovernmental networks. The trends, however, are not uniform, and the implementation of formal legal changes is an open question in light of divergent institutional contexts and social attitudes regarding cartels.

Keywords: comparative competition law, cartels, criminalization, law and globalization, transnational legal process, transnational legal orders, networks

Suggested Citation

Shaffer, Gregory and Nesbitt, Nathaniel H. and Waller, Spencer Weber, Criminalizing Cartels: A Global Trend? (July 2, 2013). Chapter in Research Handbook on Comparative Competition Law, eds. John Duns, Arlen Duke, and Brendan Sweeney (Edgar Elgar, 2015); Sedona Conference Journal, Vol. 12, 2011; Minnesota Legal Studies Research Paper No. 11-26. Available at SSRN: https://ssrn.com/abstract=2288871 or http://dx.doi.org/10.2139/ssrn.2288871

Gregory C. Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

Nathaniel H. Nesbitt

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

Spencer Weber Waller

Loyola University of Chicago, School of Law - Institute for Consumer Antitrust Studies ( email )

25 E. Pearson
Chicago, IL 60611
United States
312-915-7137 (Phone)
312-915-7201 (Fax)

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