THE CRIMINAL ENFORCEMENT OF ANTITRUST LAW – THE IMPORTANCE OF BUILDING AN ENFORCEMENT CULTURE AND HOW TO CREATE IT

There has been a proliferation of jurisdictions across the world seeking to use criminal sanctions to deter and punish cartels and many have enacted laws that criminalise this type of anticompetitive behaviour. However, other jurisdictions have failed to replicate the enviable success of the US. Reports to the OECD suggest that they have encountered difficulties ranging from procedural to legal, but also disincentives on the part of key players – like judges, the general public, prosecutors, and government – in the actual enforcement of such a regime. These experiences intimate that some of these jurisdictions – awestruck by the accomplishments of the US – have not developed the enforcement culture necessary to effectively implement and maintain a criminalised antitrust regime. This essay puts forward a rhetorical framework that other countries may draw upon when attempting to garner both public and political support in the criminalisation process. It will be argued that because of the global financial crisis leaving many countries in dire straits, regulators must seize this opportunity to leverage the universal concepts of inequality and financial hardship in demonstrating the pernicious nature of cartels and, as a result, highlight why the case for criminalisation is so strong