FOER Albert A. et CUNEO Jonathan W. (dir.), Edward Elgar & American Antitrust Institute, 2010, 637 pages.

The International Handbook on Private Enforcement of Competition Law, Albert A. FOER et Jonathan W. CUNEO (dir.)

Albert A. Foer, Jonathan W. Cuneo

The International Handbook on Private Enforcement of Competition Law gives a presentation of various national systems on private antitrust enforcement with a particular emphasis on the US system. Other countries, from Europe (England and Wales, France, Germany, Italy, Netherlands, Spain, Sweden and Turkey), from the Americas, Asia, Africa and Australia have been selected on the basis of their having at least some laws in their books that would appear to provide a private remedy.

The first large section of the book, consisting in eleven chapters, presents the US system through the development of a US antitrust case from initiation to completion in a systematic and admirably clear way. The chapters answer the following questions : what practices are illegal ?, how does a private case get started ?, which claimants may bring a private case ?, how does an attorney initiate a private claim ?, how many individual claims may be aggregated ?, what procedural defences are available, short of a trial ?, what devices are available to obtain evidence ?, what do you get if you win ?, how do you finance private enforcement ?, how does private enforcement interact with public enforcement ?, what mechanisms make claims distribution workable ? The book then turns to non-US experience through nineteen national chapters. The treatment afforded to the non-US jurisdictions is inevitably much more concise, but the authors seek to present an overview of each jurisdiction. This is done in an accessible style, generally well-referenced to assist the reader in finding relevant court decisions, and providing a useful starting point for more detailed analysis. Herein, however, lies the basis for my one criticism of the book: contrary to its title, it is not in fact “international” in any real sense. It would be more accurate to describe the book as a handbook dealing with the US system, with summaries of the systems in other key jurisdictions. Indeed, the summary nature of the accounts concerning jurisdictions of EU Member States is exemplified by the brief treatment of the landmark judgment of the European Court of Justice in the Courage case. In the opinion of this reviewer at least, the potential ramifications of the Courage case have yet to be fully explored in practice, and more detailed comment could usefully have been included in the book.

At the end of the presentation, the book reaches the conclusion efforts to harmonise competition law around the world through best practices and “soft harmonisation ”. According to the authors, a common vocabulary has been developed and an increasing number of practitioners (including governmental officials, lawyers, economists, educators and judges) are seeing themselves as being part of the same global antitrust community. The authors conclude from this that the appropriate next step should be to start thinking of harmonisation of private enforcement activities, even considering seriously a global treaty that would define standards, contain a mechanism for prosecuting global cases, and a court of last resort for both public and private cases involving cross-border corporate strategies.

Although the idea is certainly interesting, the authors themselves recognise that such an objective might be extremely difficult to achieve. Moreover, on this side of the Atlantic, and perhaps elsewhere in the world, there will no doubt be suspicion that the “ antitrust community” would be being asked to swallow a US-style system. Certainly, it emerges clearly from the chapters of the book dealing with the US system that the authors generally hold that system in high regard; and favouring one’s own system is something of which European lawyers can be guilty too. As far as Europe is concerned, there are large differences when it comes to private enforcement. For instance as regard the specific issue of collective actions, the law makes no room for it in about half of the Member States and where it does, there is a huge variety in scope and effectiveness. Regarding the question of launching a lawsuit in a collective action, in Finland, the right to launch a lawsuit is granted to a public authority – the Ombudsman –, in Bulgaria to consumer associations, and in Portugal to individuals acting on behalf of a group. Regarding the question of determining who qualifies for compensation in a collective action, whereas most national legislations have provisions for groups of consumers, only six include other victims as well, such as small businesses. Other important differences include how the damages awarded by the courts are distributed and the use of alternative mechanisms to resolve a dispute.

Very little is said in the book about the EU regime on private enforcement of competition law. The Commission White paper on damages action for breach of the EC antitrust rules is mainly mentioned in the overview of Europe in Part III, Chapter 15 of the book, by way of a presentation. The overview would certainly gain from more detailed information. Also very little is said in the book about the launching by the Commission of a wide-ranging consultation for establishing a new framework for collective actions. One of the main ideas of the reform is indeed that private enforcement of competition rules is one key element of a collective redress strategy at EU level, but not the only one. For instance, environment and consumer protection are two of the policy domains that could benefit from coordinated reforms in this area. One of the objectives behind the reform is also to address the fears expressed by various representatives of industry concerning the risks of abusive litigation and to identify safeguards that will prevent, according to the Commission, importing a US-style litigation culture (with the consequential risk of costs being ultimately passed on to consumers). The European approach to collective redress would thus, it is hoped, ensure balance between the different competing interests.

Notwithstanding the shortcomings identified above, for anyone involved with US antitrust litigation, or looking for an overview of the situation in other key jurisdictions, this book will be a valuable addition to a legal library.

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Nathalie Flandin, The International Handbook on Private Enforcement of Competition Law, Albert A. FOER et Jonathan W. CUNEO (dir.), September 2011, Concurrences Review N° 3-2011, Art. N° 38227, pp. 235-236

Editor Edward Elgar Pub

Date 30 January 2011

Number of pages 637

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