A Pathology of Business Cartels: Original Sin or the Child of Regulation?
| Author | Christopher Harding |
| Published date | 01 March 2010 |
| Date | 01 March 2010 |
| DOI | http://doi.org/10.1177/203228441000100105 |
| Subject Matter | Article |
44 Intersentia
ARTICLES
A PATHOLOGY OF BUSINESS CARTELS:
ORIGINAL SIN OR THE CHILD
OF REGULATION?
C H*
ABST RACT
Over the last 10 to 15 years there has been a signicant movement towards criminalisation
of involvement in business cartels in a number of jurisdictions around the world, outside
of the US and Canada where such conduct has been a c riminal oence since the end of
the nineteenth century. In particular there is now an emphasis on individual or personal
as di stinct from corporate liability and on the u se of severe sanctions such as
imprisonment. For European juri sdictions, this represents a signicant shi in
enforcement strategy and the perception of activities such as price xing, market sharing
and bid rig ging. Observation of th ese legal developments inevitably gives rise to the
question: what is so bad about cartel conduct as to merit censure and sanctioning
through the processes of criminal law? However, a clear consensus on the specic nature
of cartel d elinquency remains elusive. e American approach ha s been to identify an
element of conspiracy in the criminality of what are now commonly referred to a s hard
core cartels. Elsewhe re, there are ill-thought out analogies put forward with the, fraud
and dishonesty. e argument in this p aper seeks a just ication for criminalisation in
the upward spiral of enforcement a ctivity and consequent cartel defensiveness, turning
cartelists into ‘cognisant, contumacious and covert’ actors who are evolving an
increasingly d etermined outlaw ide ntity in the fac e of an increa singly assertive global
enforcement enterpr ise.
Keywords: cartel; cri minalisation; global; delinquenc y; enforcement
Why is involvement in a busi ness cartel for purposes of pr ice xing, market sha ring,
bid rigging and the li ke now regarded as seriously delinquent conduct which merits
the imposition of criminal law penalties? is question needs to be considered because,
* Professor of Law, Depar tment of Law and Crimi nology, Aberystw yth University.
To continue reading
Request your trial