OECD Journal: Competition Law and Policy

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1609-7521 (online)
1560-7771 (print)
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This journal draws on the best of the recent work done for and by the OECD Committee on Competition Law and Policy. Its articles provide insight into the thinking a competition law enforcers, and focus on the practical application of competition law and policy. Here’s what Robert Pitofsky, Chairman of the US Federal Trade Commission said about this new journal when it was launched: "Global competition is the wave of the future, and comparative analysis of the laws and practices of various members of the worldwide community of nations is a necessary corollary. This new OECD Journal of Competition Law and Policy, compiled from OECD Round Table discussions, summaries of recent developments, and articles on topics of special interest, will introduce regulators, practitioners, and scholars to different regulatory approaches around the world and will allow us to consider in a more informed way the strengths and weaknesses of our own systems."

Now published as part of the OECD Journal package.

Also available in: French

Volume 9, Issue 3 You do not have access to this content

Publication Date :
11 Feb 2009
Also available in: French

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  11 Feb 2009 Click to Access:  Cartels: Sanctions against Individuals
Corporate sanctions rarely are sufficiently high to be an optimal deterrent against cartels. Sanctions against natural persons can thus complement them. There is no systematic evidence proving the deterrent effects of sanctions on individuals, and/or assessing whether such sanctions can be justified. There is a trend among countries to accept as self-evident that individual sanctions, including imprisonment, can be a useful part of effective anti-cartel enforcement. If a country provides for individual sanctions, a strong argument can be made that relatively short prison sentences are the most cost effective deterrent. However, there are also reasons why countries may provide for longer prison sentences, most importantly that only longer statutory sentences adequately express a society’s condemnation of hard-core cartels. In addition to increasing levels of deterrence, sanctions against individuals can be a powerful incentive for individuals to reveal information about existing cartels and to cooperate in investigations. International law does not recognise the principle of double jeopardy that would prevent authorities in different countries from prosecuting the same person for participation in the same cartel. Nevertheless, where cartels are investigated in a multi-jurisdictional context, jurisdictions may consider arrangements to ensure that only one of them prosecutes an individual.
  11 Feb 2009 Click to Access:  Prosecuting Cartels without Direct Evidence of Agreement
Circumstantial evidence is employed in cartel cases in all countries. The better practice is to use circumstantial evidence holistically, giving it cumulative effect, rather than on an item-by-item basis. Complicating the use of circumstantial evidence are provisions in national competition laws that variously define the nature of agreements that are subject to the law. There are two general types of circumstantial evidence: communication evidence and economic evidence. Of the two, communication evidence is considered to be the more important. Economic evidence is almost always ambiguous. It could be consistent with either agreement or independent action. Therefore it requires careful analysis. National treatment of cartels, such as whether they are prosecuted as crimes or as administrative violations, can affect the burden of proof that applies to the cases, and hence the use of circumstantial evidence. It can be difficult to convince courts to accept circumstantial evidence in cartel cases, especially where the potential liability for having violated the anti-cartel provisions of the competition law is high. There are circumstances in countries that are relatively new to anti-cartel enforcement that could affect the extent to which they rely on circumstantial evidence in their cases.
  11 Feb 2009 Click to Access:  Monitoring Review of Korea
This report reviews the achievements of the Korean 3-Year Market Reform Road Map. This assessment is carried out in light of the OECD’s previous recommendations to shift KFTC priorities and resources toward core competition problems related to efficiency goals and away from its historic focus on conglomerate financial structure and governance; the need for further improvements in investigative powers and a clearer rule against hard-core cartels; implementation of recommendations to repeal exemptions for "small" business and exclusions of professional services and co-ordination with sectoral regulators about competition problems; and recent institutional changes to join the KFTC with the system for applying consumer protection law. This report was the basis for a monitoring review in the October 2006 session of the Competition Committee.
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