Competition and Cartel Leniency: Editorial

This editorial introduces the PLC multi-jurisdictional guide to competition and cartel leniency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/competition-mjg and www.practicallaw.com/leniency-mjg.

In an increasingly globalised economy, the importance of competition law and practice cannot be overestimated. A multinational business must consider a number of competition law issues when entering into transactions. It must notify concentrations which reach certain economic thresholds, often in several jurisdictions, and must analyse contractual clauses and other agreements to determine whether they might be prohibited for being restrictive or monopolistic, or subject to an exemption.

Infringement of competition law can lead to fines, civil liability for damages, and, increasingly, criminal liability. Even where no infringement is ultimately found, investigation by a competition authority of a suspected infringement may be extremely resource- and time-consuming, as well as damaging to the business reputation. The penalties for companies that participate in an illegal cartel can be particularly severe. In Europe, for example, the largest fine imposed on a single company is over EUR896 million; the largest fine imposed on all members of a single cartel is over EUR1.3 billion. Nevertheless, companies that have participated in illegal cartels have a limited opportunity to avoid or reduce a fine by virtue of a leniency programme.

Naturally, leniency from penalties for breaching competition rules remains a current and important issue. The significant number of countries operating leniency policies and the increase in jurisdictions adopting these policies has facilitated the use of leniency provisions that have proved successful. However, this should be considered in combination with the more rigorous enforcement by competition authorities. The latter, in turn, underlines the significance of understanding the extent to which leniency is available in different jurisdictions, the likelihood of co-operation with one competition authority triggering additional investigations by another and how best to handle multiple leniency applications across borders.

Against this background, the Competition and Cartel Leniency multi-jurisdictional guide brings together the 15th edition of the Competition multi-jurisdictional guide and the 7th edition of the Cartel Leniency multi-jurisdictional guide.

The analysis articles examine a number of current issues in competition law. The PRC merger-control regime article provides an overview of merger review decisions made in China since the Anti-Monopoly Law took effect in 2008 and highlights some of the key issues to consider when concluding an international deal involving China. In Canada, the Competition Bureau has undertaken a varied programme of development and revision with a view to updating and improving its framework for merger review, following substantial amendments to Canada's Competition Act in 2009. We include an article entitled Canadian merger review: recent developments, which considers three key aspects of the Bureau's merger modernisation initiative, undertaken throughout 2011: procedural revisions, amended substantive guidance, and renewed enforcement activity. Finally, the article on Canada's new anti-cartel regime provides a succinct comparison between Canada's anti-cartel regime post-2009 amendments of the Competition Act and that of the US.

The country-specific Competition Q&As provide practical information on competition law in 32 key jurisdictions worldwide. In particular, they examine the rules on merger control, restrictive agreements and practices, monopolies and abuse of market power, joint ventures, inter-agency co-operation and proposals for reform. Each chapter includes a flowchart of that jurisdiction's merger notification procedure and details of the main regulatory authorities.

The Cartel Leniency multi-jurisdictional guide comprises 20 country-specific Q&As that provide practical information on cartel leniency law and practice.

Each Q&A sets out the regulatory background for leniency, the conditions that must be met to qualify for full immunity or a reduction in fines, whether leniency is available for civil and/or criminal sanctions, the application procedure, the scope of leniency when granted, whether the information provided is subject to disclosure and can be obtained by domestic and foreign courts, whether the regulatory authority co-operates with regulatory authorities from other jurisdictions, and any proposals for reform.

This guide is part of our portfolio of multi-jurisdictional guides providing know-how and market intelligence for in-house counsel and private practitioners operating across borders.

Other multi-jurisdictional guides in the series include: Arbitration; Capital Markets; Competition; Construction and Projects; Corporate Crime, Fraud and Investigations; Corporate Governance and Directors' Duties; Corporate Real Estate; Data Protection; Dispute Resolution; Doing Business in…; Employee Share Plans; Employment and Employee Benefits; Energy and Natural Resources; Environment; Finance; Insurance and Reinsurance; Investment Funds; Life Sciences; Media; Mergers and Acquisitions; Outsourcing; Private Client; Private Equity; Public Procurement; Structured Finance and Securitisation; Tax on Transactions and Venture Capital.

For further information or to view any of our multi-jurisdictional guides, visit www.practicallaw.com/mjg.

This guide has been co-published with the contributors. We would like to thank all the firms involved for their excellent contributions and attention to deadlines. If you wish to contact any contributor, full details are set out at the end of the relevant chapter.

 
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