BIBLIOGRAPHY: VEDIA JEREZ Horacio, Wolters Kluwer Law, International Competition Law Series Vol. 61, 2014, 504 p.

Competition Law Enforcement and Compliance Across the World. A Comparative View, Horacio VEDIA JEREZ

Horacio Vedia Jerez

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to for review in this section.

Horacio Vedia Jerez publishes this comprehensive and interesting book on competition law enforcement and compliance after having defended his PhD on the same topic at Universidad Carlos III of Madrid in October 2014.

In chapter 1, the author gives an introduction about the origins, objectives and legal framework of competition law as well as practices subject to the control of competition law. He looks at multilateral anticompetitive agreements while presenting types of restrictive agreements (horizontal agreements with hard-core cartels, other horizontal restrictive agreements and vertical agreements). Furthermore, he highlights single firm or unilateral anticompetitive conduct with types of abusive practices (exploitative abuse, excessive pricing, discriminatory abuse, discriminatory pricing, exclusionary abuse, predatory pricing, exclusive dealing, resale price maintenance, refusal to deal, tying or bundling and other abusive practices), merger control and other practices controlled by competition law. Moreover, he examines institutional design of competition law, the enforcement of competition law, types of competition law enforcement (public, private and international), the interaction of competition law proceedings, and the law and economics of antitrust enforcement.

In chapter 2, the author focuses on public enforcement of competition law. To begin with, he introduces the subject, the objectives and the benefits of public enforcement of competition law. Then, he turns to institutions responsible for the public enforcement of competition law with the legal basis for the establishment of the competition authority, the position of the competition authority in the administrative structure, the composition of the competition authority, the structural design or model of the competition authority and the enforcement of competition law by sector regulators. Furthermore, procedural issues are presented by the author with the initiation of the investigation either by the competition authority, or the complaints or the requests to the competition authority. Also, case selection and prioritization, investigation process and powers of investigation by the competition authority are examined by the author. Next, he analyzes the benefits and negative effects of leniency programs as well as the rationale and the conditions for effective leniency programs. He explains the degrees of leniency and the drawbacks of settlements systems (criminal, civil and administrative). In addition, the author presents authorities empowered to impose sanctions and the types of sanctions (sanctions for the violation of the substantial provisions of competition law and sanctions for procedural violations). Then, he looks at the types of remedies (e.g., interim measures, permanent orders, divestiture and rescission).

In chapter 3, the author analyzes private enforcement of competition law. He presents the definition, the benefits and the objectives of private enforcement as well as the modalities of litigation in private antitrust actions. The author also explains collective and representative claims (public interest litigation, class actions, collective claims, representative actions, joint actions, assignment of claims, parens patriae litigation and fault requirement). Moreover, he looks at the rules of evidence (burden of proof, standard of proof, admissible forms of evidence, disclosure of evidence and limits of disclosure). He also provides an interesting overview of remedies in private antitrust litigation, the four kinds of injunctive relief (permanent, preliminary, declaratory and non-monetary relief) and damages (punitive, exemplary and multiplied). The author deepens its reasoning while presenting economic models for the calculation of damages. He also underlines that the courts are discreet when awarding damages for the breach of competition law. In the same chapter, the author points out the interaction between private and public proceedings and the interaction between the competition authority proceedings and Court proceedings with the requirement of a prior decision by the competition authority. He also looks at the rules of evidence regarding the interaction between public and private proceedings. Next, he highlights the interaction between leniency programs and private actions for damages. Finally, he offers a critical view on the interplay and tension between arbitration and competition law. He questions the arbitrability of competition law disputes and he presents the powers of the arbitrators (interim measures, powers to request information and use of experts in arbitration).

In chapter 4, the author provides an overview on self-enforcement and antitrust compliance. He highlights the legal obligation to comply with the law, the perception of internal and external factors to comply with the law and corporate social responsibility. The author underlines that there are drivers of compliance and non-compliance. The drivers that encourage compliance are, for example, fear of monetary sanctions imposed on corporations and individuals, fear of imprisonment, fear of damage to individual or corporate reputation and morality, and effective compliance training programs. The drivers that encourage non-compliance are, for instance, corporate culture of non-compliance, lack of or ambiguity in senior management’s commitment to compliance, market conditions that facilitate the infringement of competition law and ignorance of the legal consequences of non-compliance. In this context, the author refers to the essential features of effective compliance programs (e.g., risk assessment, integrated approach, standards, controls, empowered compliance officer, resources, infrastructure, board oversight, senior management support, training and communication).

In chapter 5, the author concludes that there are inadequate competition law commands, weak competition law institutions, ineffective sanctioning systems and deficient judicial review mechanisms for public enforcement. Moreover, there are unclear legal basis for the private enforcement of competition law, inexperienced competent courts to handle competition law cases, limited legal standing, unavailability of effective collective redress mechanisms, impossibility to access relevant information and high standards of proof, excessive cost of private litigation and rough interaction between private and public proceedings.

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David Leys, Competition Law Enforcement and Compliance Across the World. A Comparative View, Horacio VEDIA JEREZ, January 2015, Concurrences Review N° 1-2015, Art. N° 70689, pp. 259-260

Editor Wolters Kluwer Law & Business

Date 1 November 2014

Number of pages 496

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