Cartel Regulation Research Articles

Introduction to the Hungarian Cartel Regulation in the Interwar Period

WWI significantly influenced the development of private and trade law. The regulation of economic law institutions came up as a necessity. To protect the consumers’interests, the state interfered with private law affairs and regulated sharking procedures, unfair competition and cartel law. By taking European regulation results into account, cartel regulation organisations were introduced by the Cartel Act; the most important of them was the Cartel Court. This paper shows the most important steps of the antitrust regulation in Hungary’s special attention to the relevant European cartel regulations.

The Antecedents of the Regulation of the Economic Competition Agreement in the First Part of the 20th Century in Hungary

The regulations of the economic competition agreement were introduced by the 20th Act of 1931 after the economic crisis attention to the cartel regulations in Europe in the interwar period. We can realize that the regulation of the unfair business completion has a long codification history which started in the period of the Dualism. Before the end of dualism the Hungary regulated some question related to the cartels special attention to the circulation of commodities. In my presentation, I aim to describe the Hungarian and European codification antecedents and steps (for example: the regulation of industry) of the first Hungarian Cartel Act. This codification process was very important in Hungarian economy and social life because the economic changes started processes in both the field of legal life and legal sciences, and as a result of this, a demand arose to legally codify any rules in connection to cartels. The foundations of these were found in private law, especially in the regulations of the commercial law, which could be further elaborated upon and lead to a development of the regulations on the annulment of contracts in connection to dishonourable business competition.

Extraterritoriality in Japanese Competition Law: Reaching Foreign Entities in the Face of Changing Global Norms

The Japanese Antimonopoly Act (AMA, 1947) does not state how far its provisions reach internationally, and the Japan Fair Trade Commission (JFTC) has been very cautious about applying the AMA to actions taken abroad. Instead, there is a special provision, Article 6, that prohibits enterprises from being parties to anticompetitive international agreements, and the JFTC applied this to Japanese companies for a few decades after the AMA was enacted. ... Changes in international norms prompted the JFTC to engage in a gradual shift from partial enforcement of the AMA to extraterritorial application to foreign entities. The Supreme Court’s Cathode Ray Tube (CRT) judgement (2017) is a milestone case, as the court finally pronounced that the AMA was applicable to foreign companies’ actions abroad if those actions affect the free competition regime in Japan. In the paper, the historical development of the JFTC’s decisional practice, focusing on Article 6, is examined first, and the paper considers what prompted it to change. The CRT case is then examined, and the remaining issues and future directions that Japan should take, particularly regarding the regulation of export cartels, are explored.

공정거래법상 합의추정제도의 활용과 개선방안

2007년 이전까지 합의추정제도는 부당한 공동행위를 규제하기 위해 비교적 활발히 활용되었으나, 2007년의 법 개정으로 인해 그 활용은 급격히 감소한다. 본 논문은 합의추정제도의 활용이 감소하게 된 원인을 밝히고 개선방안을 제시하는 것을 목적으로 한다. 개정 전, 구 합의추정조항은 ‘행위의 외형상 일치’와 ‘경쟁제한성’ 요건만 충족하면 부당한 공동행위의 성립을 추정하였다. 그러나 이러한 운용은 추정대상을 지나치게 확대한다는 비판에 직면하게 되었고, 2007년 개정된 추정조항은 이 비판을 수용하여 ‘해당 거래분야, 상품 용역의 특성, 사업자간 접촉의 횟수 등’의 ‘정황증거’와 ‘상당한 개연성’을 추가로 요구하였다. 개정 이후 합의추정조항의 활용이 급감하게 되는데, 2005년 무렵부터 활성화된 자진신고자 감면제도와 개정으로 인한 합의추정조항의 장점이 감소한 것을 원인으로 볼 수 있다. 특히 개정된 합의추정조항은 공정거래법 제19조 제1항을 통해 사실상 추정을 하는 것과 큰 차이가 없었고, 경쟁당국의 입증책임 완화라는 초기 도입목적도 충족하지 못하였다. 하지만 우리나라의 경우 해외 경쟁법의 흐름과 다르게 부당한 공동행위가 인정되기 위해서는 엄격한 입증을 요구한다는 점과 글로벌 기업들이 경쟁법의 역외적용으로 인해 행위지와 상관없이 복수의 국가로부터 강력한 제재의 위험에 직면해 있다는 점, 특히 많은 한국 기업들이 이러한 제재와 과징금의 대상이 되고 있다는 점, 자진신고자 감면제도에만 의존하기에는 한계가 있다는 점 등을 고려한다면, 합의추정제도의 개선은 필수적이다. 개선방안으로 법률개정과 해석기준완화의 방법을 제시할 수 있다. 법률개정의 측면에서는 공정거래법 제19조 제5항의 ‘상당한 개연성’요건을 삭제 또는 완화하는 방법이 있을 수 있고, 부당한 공동행위의 수단으로 빈번하게 악용되는 ‘정보교환행위’에 대한 규제를 신설하는 방법도 생각해 볼 수 있다. 해석기준 완화의 방법으로는 영미권의 ‘증거의 우월’ 개념을 도입하거나 부당한 공동행위의 유형에 따라 증거가치의 수준을 다르게 판단하는 방법도 검토해 볼 수 있다.

A Study on the recent Cartel Regulations and Problems in Chinese Anti-trust Law

A Study on the recent Cartel Regulations and Problems in Chinese Anti-trust Law

Sanction Accumulation in the Context of Business Offending: The Full Force of the Law?

Over the past thirty years or so the regulation of business cartels in an international context has provided an interesting site for the application of legal sanctions—both criminal law and otherwise, both penal and otherwise—in a way which is wide-ranging and with some impressive accumulation in quantity, although without much systematic and considered reflection on the theoretical basis or practical impact of this practice. From the point of view of both policy and justice, the calculation and critical assessment of such sanction accumulation might appear to be an important and worthwhile exercise. Yet the theory and the methodology of such an assessment appears to be insufficiently considered and worked out. It will be argued here that this is a matter which deserves some reflection and clarification, with some endeavour to work out principle and method for the purpose of calculating sanction accumulation and the matching of the latter with victimhood in this context.

The political economy of European cartel regulation

For many years, cartels were considered a natural and legitimate way of organizing markets throughout Europe. In the past few decades, however, a paradigm shift in the regulatory approach to cartels has taken place, both at national and EU level. This shift is for instance reflected in the increasingly tough sanctions imposed on cartel participants. The article adopts a critical political economy perspective on European cartel regulation and divides its development into two phases; as part of a ”regulated” form of capitalism and as an element in a neoliberal form of capitalism. The paradigm shift is mapped with examples from the EC/EU, Denmark and other European countries and explained with reference to changes in power relations, social structures and accumulation and prevailing ideas. Finally, the article asks whether there are signs that the economic crisis in the wake of the financial crisis in 2008 will cause a new shift in the way cartels are regulated in Europe.

What's Wrong with Cartels?

Cartels have a significantly negative impact on economic welfare. Anti-cartel competition law–such as the provisions of pt IV div 1 of the Competition and Consumer Act 2010 (Cth)–tries to tackle this negative impact through civil and criminal remedies. The prohibition of cartels is most commonly justified on economic grounds. However, reference is also often made to broader moral grounds for proscribing cartels–for example, it is commonly stated that cartels are deceptive, unfair or engaged in a form of cheating. This article advances a unified account of the moral status of cartels that integrates both economic and moral factors. It does so by emphasising the relationship of cartel behaviour to the moral duty to promote the common good. Cartels are wrong because they undermine the role of open and competitive markets as a salient response to an important social coordination problem in a way that leads to seriously harmful economic outcomes. This combination of factors supplies a robust justification for both civil and criminal sanctions in appropriate cases, thereby affording a principled foundation for the current framework of cartel regulation in Australia.

Game-playing and understanding decision-making within legal frameworks: the use of computerised simulation

The use of hypothetical factual situations to explore and discuss the way in which ‘real-life’ events and problems occur and develop is an established and valuable predictive method for understanding such events and testing the resolution of problems. In so far as such simulation employs hypothetical events and itineraries of action as a way of arriving at conclusions and solutions, it may be described as a kind of game-playing, and the discussion in this paper first explores the value of simulation exercises in legal and other contexts. Then, taking the example of a simulation based upon a board game involving strategies and risks arising in the legal regulation of business cartels, it reports on the testing of a more powerful computerised version of the board game. Examining the outcome of a large number of moves around the game board, this served as a pilot study for considering the value of further development of such a computational model for possible application in research, educational, and training contexts.

Competition Law and the Regulation of Buyer Power and Buyer Cartels in China and Hong Kong

AbstractThe paper focuses on the application of competition law in HK and China to buying alliances and buyer cartels in intermediate markets. The discussion set to clarify the legality, under the competition provisions, of purchase price fixing agreements between buyers.

Regulation of Cartels in India

India has transformed its competition regime to bring it in harmony with the demands of liberal market economy. One of the significant changes the new competition law has brought about is that it has differentiated between horizontal and vertical agreements. Cartels under the new regime are presumed to be anticompetitive. However, the penalty clauses initially created some confusion with regard to the interpretation of 'presumption'. Subsequent amendments and decisions of the Competition Commission of India have cleared many ambiguities but some grey areas are still left. It would be in keeping with the spirit of the new Act and the investigation procedure outlined in it that the 'presumption' in section 3 of the Indian Competition Act be read as 'quick look rule of reason' approach developed in the United States of America. This would take care of the need for flexibility in application of the competition law depending on the social and economic implications of a particular case.

Legal Aspects of Escape from Criminal Liability for Cartelists in Russia

The article is based on the conference speech made by the author during the “Per Se Cartel Offences – Legitimacy and Utility of Criminal Sanctions?” conference, organized by the University of Luxembourg on the 23rd and 24th March 2012 and covers current cartel regulations in Russia, administrative and criminal liability for cartelists and aspects of escape from criminal liability.

Book Review: Australian Cartel Regulation: Law, Policy & Practice in an International Contex

Book Review: Australian Cartel Regulation: Law, Policy & Practice in an International Contex

Cartels in Russia: Fight Chronicles

The author describes development of Russian competition and criminal law in the context of cartel regulations, discusses known cases and analyses further perspectives in this area, following the passing of the “Third Antimonopoly Package”, signed by President Medvedev on the 5th of December 2011.

A viewpoint on cartels: an Indian perspective

PurposeThe purpose of this paper is to critically analyze the adverse effects of cartels on the economy and the interests of consumers and how they are sought to be regulated under the Indian Competition Act, 2002.Design/methodology/approachThe paper focuses on the definition of cartels and the various factors conducive for the promotion of cartels and how they are sought to be regulated in the select jurisdictions with the help of decided case laws. It also sheds adequate light on the deficiencies of the Monopolies and Restrictive Trade Practices (MRTP) Act, 1969 in curbing cartels and how such deficiencies are sought to be remedied under the Competition Act, 2002. The paper further highlights the new trends and investigative tools in busting of cartels in the developed world and the salutary lessons that could be drawn by the competition regimes of the developing countries.FindingsThe paper discloses that the earlier MRTP Act, 1969 as well as the prevailing Competition Act suffers from various flaws in curbing cartels, resulting in the feeble regulation of cartels with all attendant baneful consequences on the economy and consumer interests. The paper strongly advocates the need to treat cartels as criminal offences warranting prosecution and punishment apart from encouraging leniency and whistle blowing for facilitating the busting of cartels.Practical implicationsThe paper identifies the potential difficulties and intricacies that could be encountered by the competition authority in addressing the cartels owing to shortcomings in the Competition Act, 2002. Hence, the paper articulates that these concerns should be addressed by the legislature at the earliest for further strengthening the regulatory mechanism over cartels in the interests of economy and consumers.Originality/valueThe subject focused in the paper is a topic of utmost contemporary importance having wide implications on the national economies across the world, calling for novel methods and techniques in dealing effectively with the menace of cartels.

Cartel Regulation in Three Emerging BRIC Economies: Cartel and Competition Policies in South Africa, Brazil and India - A Comparative Overview

The benefits of bilateral agreements in regard to international cartels are clear: only a synchronized and international approach will help the developing nations in protecting their markets from unfair competition practices. This article shows the state of anti-cartel policies and legislation in selected jurisdictions, the present state of the coordination of competition policies through promotion and cooperation at the bi-national and international level and highlighted some examples of more publicized anti competition cases. One observation is that more could be done by the developing NIC nations to increase the collaborative ties of their anti competition policies and organs as well as ensure that they fall under the wider umbrella of regional competition regimes such as in the case of South Africa and the European Union. The necessity to safeguard consumer welfare through effective domestic anti competition frameworks was highlighted in the discussed cartel cases. Time will tell whether the emerging economies will be able to balance competition policy and consumer welfare in an effective and progressive way without affecting their trade and investment policies.

Cartel Deterrence: The Search for Evidence and Argument

Discussion and argument concerning the deterrent impact of anticartel enforcement measures have gained in significance and controversy as the whole regulatory enterprise and rhetoric of cartel regulation has expanded and developed. Regulators have become ever more emphatic in the denunciation of business cartels, and deterrence has therefore assumed a significant role in the justification of a stronger and more determined effort of legal control. In particular, cartelists need to be deterred into whistle blowing for leniency programs to work, and businesses need to be deterred into compliance to achieve the ultimate regulatory goal. Deterrence (rather than, for instance, economic redistribution or retributive justice) then becomes a leading, perhaps the leading objective within the legal control of cartels. Yet claims of deterrent effect are notoriously difficult to measure and assess. The discussion here examines the underlying problems of penetrating and measuring the deterrent impact of anticartel policies and sanctions and considers the possible methodologies for assessing deterrence in this context.

The Presumption of Agreement by Law in Prospect of the Amendments of Cartel Regulation of the Fair Trade Act

The Presumption of Agreement by Law in Prospect of the Amendments of Cartel Regulation of the Fair Trade Act

The Development of Legal Principles against Cartels in the United States and its Implications toward Improving Cartel Regulations of Korea

The Development of Legal Principles against Cartels in the United States and its Implications toward Improving Cartel Regulations of Korea

From Cartel Regulation to Monopolistic Control? The Founding of the German 'Steel Trust' in 1926 and its Effect on Market Regulation

(2003). From Cartel Regulation to Monopolistic Control? The Founding of the German 'Steel Trust' in 1926 and its Effect on Market Regulation. Business History: Vol. 45, No. 3, pp. 22-51.