The challenges of private antitrust enforcement in transition economies

Abstract

PurposeThe purpose of this paper is to examine the practical and legal challenges and barriers to the development of a private action in antitrust controls and to project those onto a consideration of the development of such rights of action through a case study of Brazil.Design/methodology/approachThe paper provides a critical review of both the theoretical and practical barriers to the development of private rights of action, drawing upon the history of development in both the USA and in Europe and the regular considerations of policy and law making, through debate at the Organisation for Economic Co‐operation and Development. This comparative and historical analysis is projected into models of design and delivery for consideration by law makers.FindingsDespite the different legal traditions and policy considerations of the different jurisdictions, the fundamental design of a common action pan‐jurisdictions and outwith conflict of law principles might be possible. The paper proposes a design framework to facilitate and achieve this. The case‐study of Brazil presents an interesting and recent context, and illustration, of this process.Practical implicationsThe paper provides an historical and comparative account of the development of private rights actions in this area and provides, to the law maker, a framework and set of legal principles and practical enforcement and design guidelines. This framework and its guidelines should assist those countries seeking to introduce such rights of action in the policy area of antitrust control.Originality/valueThe historical and comparative approach draws together in one paper a contemporary global position in this area of law development.