The Law of Criminal Cartels Practice and Procedure

Author: Michael O'Kane
Publisher: Oxford University Press
ISBN: 9780199561209
Published In: September 2009
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Author
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Analyses the law and procedure as well as development and elements of the offence
Offers a complete account of the powers of the OFT and its recently revised leniency regimes
Brings together discussion of the criminal regulatory and civil law
Reviews the law and procedure in the UK, EU and US as well as the main regimes where such conduct is criminalised
Provides solutions to practical problems, such as competing jurisdictions and the interaction between criminal and regulatory investigations
Provides extensive treatment of recent case-law including the House of Lords decision in Norris and the UK's first criminal cartel prosecution in the Marine Hoses case
The Law of Criminal Cartels provides comprehensive coverage of the cartel offence introduced into UK law by the Enterprise Act 2002, as well as of the related powers of the main regulators in the UK, EU, and overseas. The appearance of cartel conduct presents new challenges for lawyers straddling the traditionally unrelated areas of criminal and competition law. The book is a main tool of reference for practitioners uncovering a potentially criminal cartel and considering the position of the company or individual, and for practitioners advising corporate and individual clients who are the subject of UK criminal and cartel investigations with ramifications in other jurisdictions.

This book is the first work to focus exclusively on the UK cartel offence from the practitioner's perspective. The text provides an analysis of the relevant black letter law and procedure - bringing together the criminal, regulatory, and civil law regimes. It provides detailed coverage of the history and development of anti-cartel enforcement, examining in depth the elements of the offence that give rise, for the first time, to personal criminal liability in the UK. This analysis includes identifying issues with the statutory offence where clarification through case law is likely to be required. It also takes clear account of the international perspective, providing a detailed exposition of the UK, EU and US regimes, as well as the main regimes where such conduct is criminalised. Designed to address the problems that arise in practice, the book focuses on thorny topics such as competing jurisdictions; the interaction between criminal and regulatory investigations (information-sharing and other types of co-operation); and conflicts of interest. It also includes a full guide to the OFT's recently revised leniency regime.

The appendices include relevant OFT guidance and statutory provisions including Part 1 of the Sherman Act 1890, Part 6 of the Enterprise Act 2002, OFT Leniency Guidance and the OFT Investigative Powers Guidance.

Readership: Competition lawyers, criminal lawyers, and legal advisers in the regulatory and prosecuting agencies in the UK and internationally, in particular the US and EU.

1. A General History of Criminal Cartels

What is a Cartel?

The US Approach to Cartels

Cartel Enforcement in the UK

International co-operation

The Relevant Institutions

2. UK Criminal Cartel Conduct

Introduction

The "Hard Core Cartel"

The Cartel Offence

Conspiracy to Defraud

3. Criminal Cartel Investigations in the UK

Introduction

OFT Powers of Investigation

Disclosure of Information Obtained in an investigation

Parallel Civil and Criminal Investigations

Dealing with a Dawn Raid

4. The Conduct of Civil Cartel Investigations in the United Kingdom

Introduction

Investigations under the Competition Act

The Investigatory Powers

Investigations by the European Commission Part II of the Act

Matters applicable to all investigations

5. Criminal Immunity in the UK and US

UK:

Introduction

Type A Immunity

Type B Immunity

Commission Immunity Outside UK - Type A and B

The Coercer Test in Type A, Type B and Corporate Immunity cases

Criminal Immunity in Type B or C leniency cases

"Public Interest"

Criminal Immunity-Preliminary Issues

Conditions for Immunity

Conduct of Interviews in Immunity/Leniency Applications

Transfer of Information

Value of the no-action letter

Revocation of a no-action letter

United States:

Introduction

Corporate Leniency Policy 10 August 1993

Leniency Policy for Individuals 10 August 1994

Revocation of Immunity

Incentives to Self-report

Second-In Cooperation/ Non-immunity applicant

Information Transfer

6. Prosecution of Cartel Offences in the UK; Introduction

The Pre-Trial Process

The Trial Process

Consequences of a Conviction

7. Territoriality in Criminal Cartel Investigations; Introduction

Mutual Legal Assistance

Concurrent UK/US Cartel Investigations

Extradition

8. Criminal Cartel Regimes in other Jurisdictions

Introduction

The United States

France

Germany

Ireland

South Africa

Brazil

Japan

Canada

Australia

Russian Federation

A Summary of the Criminal Cartel Regime in EU Member States

APPENDICES; Appendix 1: Enterprise Act 2002, Part 6

Appendix 2: Enterprise Act 2002, Part 6 - Explanatory Notes

Appendix 3: Office of Fair Trading: The cartel offence - Guidance on the issue of no-action letters for individuals

Appendix 4: Leniency and no-action - Office of Fair Trading's guidance note on the handling of applications

Appendix 5: Office of Fair Trading: Powers for investigating criminal cartels - Guidance

Appendix 6: Memorandum of understanding between the Office of Fair Trading and the Director of the Serious Fraud Office ;

Michael O'Kane, Partner and Head of the Fraud and Regulatory Department, Peters & Peters

Contributors:

Jasvinder Nakhwal, Peters & Peters
Jessica Simor, Matrix Chambers
John O'Flaherty, Matrix Chambers

"very clear and well set-out... the best available source of a practitioner guide to the offence." - Mark Furse, The Edinburgh Law Review

"This is a much-welcomed and needed book and from a well-recognised practitioner...Michael O'Kane has produced a valuable reference." - Katharine Holmes, Consultant, Reed Smith LLP