GOVERN & LAW 

Whistleblowing Competition: Global Challenges & Upgrade

December 10, 2018

 

Leniency and immunity programs are a well-known detection tool, whereby any cartelist may voluntarily disclose the cartel and cooperate with relevant competition or antitrust authorities in return for a fine reduction or immunity. Leniency has so far proven the most successful and effective enforcement strategy tool, leading to its widespread adoption worldwide. At the same time, the business community and competition authorities currently face critical challenges to ensuring the continued incentivisation and effectiveness of leniency programs and compete with other whistle-blowing fields:

 

1.      Proliferation, cooperation and discontents in public enforcement:

 

Leniency programs are in place in more than 60 jurisdictions to date, ranging from the United States, to the European Union, Brazil, Mexico and Japan, among others. Leniency program proliferation raises opportunities for international cooperation and for levelling the global playing field. In the context of international cartels, however, undertakings face challenges due to differences across leniency jurisdictions and the absence of a mutual recognition or one-stop shop mechanism (similar concerns arise in multi-jurisdictional merger control). Non-harmonised proliferation of leniency programs therefore prompts (i) companies to re-assess the risks, pros and cons of applying for leniency, and (ii) governments to pursue efforts towards enhanced cooperation and consistency in cartel detection, e.g. through the OECD, ICN, UNCTAD and regional networks. Progress towards coordination and/or harmonisation is all the more urgent as business, hence cartel risk, is increasingly driven by e-commerce, big data, algorithms and the blockchain, that is multi- or meta-jurisdictional factors. 

 

2.      Public v. private competition law enforcement:

 

Public enforcement refers to action by public competition authorities, leading to public sanctions upon undertakings and/or individuals, including fines, disqualification and/or jail time. Private enforcement refers to litigation by cartel victims (e.g. consumers charged a cartel-induced price premium) seeking compensation in court, often in the form of follow-on damages. Private compensation or restitution is, in a few jurisdictions (e.g. the US), a condition for leniency in public enforcement – in practice, it remains rare and governments are reflecting on how to promote private action further. While both public and private enforcement are essential and complementary in fighting cartels and rendering justice, potential private actions may also disincentivise undertakings to disclose a cartel and self-incriminate in the first place. The 2014 EU Damage Directive opens solution paths pertaining to liability and evidence limitations. At national and international levels, striking the balance between fair treatment of leniency applicants and promoting victim compensation proves a delicate endeavour calling for cautious legal strategy.

 

3.      Competition law v. other fields:

 

Corporate wrongdoing can, in practice, trigger various legal qualifications and realms of enforcement, e.g. antitrust, corruption and fraud. The Petrobras, Odebrecht, LIBOR and FOREX scandals are telling examples. In other instances, collusion may qualify simultaneously as a cartel falling under administrative competition enforcement and as a conspiracy falling under criminal prosecution. Leniency in competition policy includes both self-incrimination and blowing the whistle against other wrongdoers. Anti-fraud and anti-corruption policies, by contrast, tend to distinguish between self-reporting and whistle-blowing procedures. Could or should competition leniency evidence be used for non-antitrust wrongdoings? Shall leniency evidence carve out self-incrimination? What level of cooperation is desirable, even within the same jurisdiction, among e.g. the competition authority, anti-fraud office and public prosecutor? Some jurisdictions address the challenge through statutory law (e.g. Brazil), others through litigation before the Supreme Court (e.g. Chile), or through de facto non-referral (e.g. France). Leniency in the wider ‘corporate crime’ context calls for a holistic approach to risk assessment and for consistent detection and enforcement solutions.

 

These challenges highlight two major transversal trends. On the business side: the compliance & ethics revolution. On the enforcement side: the exploration of new detection methods.

 

The compliance revolution builds on cross-field synergies in preventing, detecting and remedying corporate misconduct. There is no successful business absent a coherent, multi-disciplinary and collaborative risk management strategy. Tools used in antitrust may prove useful in anti-bribery; data protection rules may prove challenging to anti-fraud principles. Complexity calls for dialogue and breaking silos created by over-specialisation.

 

While fully supporting the relevance and effectiveness of leniency programs, competition authorities are exploring additional detection tools, less dependent on cartelists’ decision to come forward. New tools include e.g. market screening, big data analytics, e-discovery and algorithmic radars. The LIBOR-FOREX scandals were detected that way. As the competition community is exploring how competition laws apply to algorithms, modern LegTech solutions shall further support the detection of anticompetitive conduct.

 

Mona Caroline Chammas, Esq.

GOVERN&LAW

 

 

To pursue the reflection:

- OECD 2018, Challenges and co-ordination of leniency programmes: 

http://www.oecd.org/daf/competition/challenges-and-coordination-of-leniency-programmes.htm

 

- OECD 2018, Cartel screening in the digital era: 

http://www.oecd.org/competition/workshop-on-cartel-screening-in-the-digital-era.htm

 

- OECD 2017, Algorithms and collusion: 

http://www.oecd.org/competition/algorithms-and-collusion.htm

 

- UNCTAD 2016, Competition Guidelines: Leniency Programs: 

http://unctad.org/en/PublicationsLibrary/ditcclp2016d3_en.pdf

 

- OECD 2014 Council Recommendation on international co-operation on competition investigations & proceedings: 

http://www.oecd.org/daf/competition/2014-rec-internat-coop-competition.pdf

 

- OECD 2014, Fighting corruption and promoting competition: 

http://www.oecd.org/competition/fighting-corruption-and-promoting-competition.htm

 

- OECD 2014, Competition and the use of markers in leniency programmes: 

http://www.oecd.org/competition/markers-in-leniency-programmes.htm

 

- ICN 2009, Effective Leniency Policy: 

http://www.internationalcompetitionnetwork.org/uploads/library/doc341.pdf

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