Andreas Stephan ‘An empirical evaluation of the normative justifications for cartel criminalisation’ (2017) Legal Studies 37(4) 621

A growing number of jurisdictions treat ‘hard-core’ cartel conduct as crime, in the belief that the threat of incarceration is necessary for deterrence. For many years, the US was the only active criminal cartel enforcement regime in the world. Cartels were first prohibited under the US Sherman Act 1890 as misdemeanours, and became a felony in 1974. The US Department of Justice regularly secures convictions of firms and individuals – many of whom agree to serve custodial sentences under negotiated plea agreements – from around the world. In the past 20 years, there has been an international movement towards the US model. Around 25 jurisdictions have criminalised ‘hard-core’ cartel conduct, including the UK, France, Ireland and Australia – with many more having adopted criminal offences that relate only to bid-rigging in public procurement. Most of these jurisdictions have chosen to retain their civil enforcement powers in parallel, so as to use criminal enforcement selectively. However, there is still disagreement over…

Jonathan Galloway ‘Securing the Legitimacy of Individual Sanctions in UK Competition Law’ (2017) World Competition 40(1) 121

This article – which you can find here – looks at attempts to impose individual sanctions for breaches of competition law in the UK. These sanctions include the recently amended criminal cartel offence – which can lead in imprisonment of up to five years – and the NCA’s power to apply for a competition disqualification order. Famously, the UK’s record in the enforcement of these sanctions is mixed (see below). To explain this state of affairs, the author identifies a tension between the economic theory of deterrence – which underpins the regime – and regulatory theory on the effectiveness sanctions – which, the author claims, has been ignored. The author points out that traditional deterrence theory relies on a combination of probability of detection and severity of punishment to create a perception of sufficiently high costs to deter wrongdoing. Yet when this leads to the imposition of very high penalties in order to counter a low probability of detection and…