The War on International Cartels: Traps for the Unwary

Abstract

It is generally accepted that competition is good for business and good for consumers in part because competition encourages innovation and provides an incentive for businesses to reduce costs and thus lower prices. While in some situations monopolies and other anti-competitive business arrangements are lawful, and even encouraged by way of limited exemptions from antitrust laws , overall most governments around the world view competition as the backbone of a healthy, innovative economy. As such, nations all over the world have in varying degrees enacted laws that impose civil and in some cases criminal sanctions on certain business arrangements and conduct deemed anti-competitive. Cartels , the subject of this article, are currently viewed by many nations as particularly evil and the focus of new laws and investigative efforts that impact almost every type of global business concern imaginable. In the current economic environment, the struggle for profits is a major concern for businesses around the world. In an effort to obtain or maintain profit, some businesses have intentionally or unintentionally run afoul of a myriad of international laws prohibiting anti-competitive transactions in general and “cartels” in particular. This is a very complex area of international law where several nations with differing laws may have jurisdiction over a particular business arrangement. This article is not a complete guide to the legal implications of any particular business arrangement, but rather is an attempt to assist corporate counsel in understanding the multiplex of legal issues that may arise from an international business transaction that one or more nations may view as “cartel” activity, and describe certain steps corporate counsel may want to consider in addressing those issues. Finally, this article will present some practical considerations to assist corporate counsel in crafting a corporate strategy designed to mitigate international anti-competitive exposure and provide insight into what a company that is involved in a “cartel” investigation may encounter.