Restitutionary Remedies in Competition Law: Bull in a China Shop?

Abstract

In this article, the author argues that restitution should be available in competition law cases. However, it should only be granted where the requirement of corrective justice is satisfied. Hence, as long as this justice criterion is most paramount to the court, the application of restitution could then consequently have a deterring effect. To sustain this argument, the author criticizes the Court of Appeal’s decision in Devenish v. Sanofi-Aventis SA (France), where it held that restitution was not available in competition law cases. The judgment failed to identify the basis of private antitrust actions. It also failed to work itself towards the ultimate goal of competition law. In addition, the judges failed to take into account the larger context in which private parties may legitimately seek restitutionary remedies. In order to appreciate the value of restitution in competition cases, this article discusses its application in the US. Finally, based on normative and efficiency arguments, the author recommends that the position of the law should be corrected at the earliest opportunity.