Concurrent Proceedings in Competition Law Procedure, Evidence and Remedies

by Nazzini, Renato

• ISBN13: 9780199273799
• ISBN10: 0199273790
• Format: Hardcover
• Copyright: 2005-02-10
• Publisher: Oxford University Press

Summary

The book contains a full and up-to-date account of the implications of concurrent enforcement of UK and EC competition law in administrative, criminal, and civil proceedings, including international arbitration. It analyzes the procedural consequences of modernization of EC competition law and the tactics available to parties before national courts and arbitral tribunals or in the course of administrative investigations by the Commission or the Office of Fair Trading in national and international cases. Although a very complex area of law, the author makes it accessible and clear for practitioners as well as academics working in the field.

Author Biography

Renato Nazzini is a lawyer qualified in both England & Wales and Italy, and is currently Assistant Director of Competition Policy Coordination at the Office of Fair Trading in London. He is also a Visiting Fellow at the British Institute of International and Comparative Law. Previously he practiced in competition law, commercial law and dispute resolution at a major Italian law firm. He holds a doctorates in International Arbitration from the University of Milan and Competition Law from the University of London.

Table of Contents

List of Abbreviations	xxvii
Tables of Cases	xxix
Tables of Statutes	xliii
Table of Statutory Instruments, Rules, and Practice Directions	liii
Table of Treaties and Conventions	lv
Table of Rules of Arbitration and Articles of the UNCITRAL Model Law	lvii
Introduction	1	(20)
Overview	1	(2)
Road Map of the Analysis	3	(11)
Static and Dynamic Interactions	14	(7)
General	14	(1)
Stays	15	(3)
Binding effect of administrative decisions	18	(2)
Evidence	20	(1)
Administrative and Civil Proceedings	21	(9)
Stays	21	(2)
Binding effect of administrative decisions	23	(1)
Evidence	24	(6)
Criminal, Administrative, and Civil Proceedings	30	(4)
Civil and criminal proceedings	30	(2)
Administrative investigations by the OFT and criminal proceedings	32	(1)
Intersection with Commission proceedings	33	(1)
International Commercial Arbitration	34	(6)
Implications of the `second look' doctrine	34	(1)
Stays	35	(1)
Evidence	36	(2)
Effect of administrative decisions	38	(1)
Arbitration and criminal proceedings	39	(1)
Tactical Implications of Concurrent Proceedings	40	(4)
Leniency	44	(2)
Private Enforcement	46
I ANALYSIS OF THE LEGAL FRAMEWORK
Concurrent Enforcement of Competition Law	21	(20)
Introduction	1	(8)
Remedies and proceedings	1	(1)
Private enforcement	2	(1)
Multiplicity of institutions	3	(1)
Multiplicity of proceedings	4	(1)
Concurrent proceedings	5	(4)
The Changing Legal Landscape	9	(8)
Reforms of EC competition law	9	(4)
Reforms in the UK	13	(3)
The European Competition Network	16	(1)
Concurrent Enforcement of EC Competition Law	17	(21)
The Treaty provisions	17	(2)
The model under Regulation 17/62	19	(5)
Modernization of EC competition law	24	(5)
The role of national courts	29	(7)
Private and public enforcement: Practical implications of interaction	36	(2)
Concurrent Enforcement of UK Competition Law	38	(16)
Historical development of UK competition law	38	(6)
Investigations under the Competition Act 1998	44	(2)
The Enterprise Act 2002	46	(2)
Private law remedies in the UK	48	(6)
Conclusion	54
Administrative Proceedings	41	(36)
Introduction	1	(5)
Proceedings Brought by the Commission	6	(40)
Commencement of Commission investigations	6	(1)
Guidance letters	7	(2)
Complaints	9	(6)
Structure of the proceedings	15	(1)
The investigative stage	16	(9)
The formal proceedings	25	(7)
Decisions of the Commission	32	(7)
Judicial review of Commission decisions	39	(7)
Proceedings Brought by the OFT or the Regulators	46	(38)
The OFT	46	(3)
Sectoral regulators	49	(1)
The Competition Commission	50	(1)
Proceedings for enforcement of EC and UK competition law	51	(3)
Powers of investigation	54	(7)
Decisions following an investigation	61	(4)
The Competition Appeal Tribunal	65	(19)
Proceedings by other EU National Competition Authorities	84	(18)
Applicable procedure	84	(3)
Case allocation within the European Competition Network	87	(12)
Decisions by national competition authorities	99	(3)
Administrative Investigations in the US	102	(5)
Investigations by the Department of Justice, Antitrust Division, and the Federal Trade Commission	102	(1)
Cooperation between US Federal Agencies and the Commission	103	(4)
Conclusion	107
Judicial Proceedings	77	(30)
Introduction	1	(5)
Civil Proceedings	6	(31)
Remedies and procedure	6	(3)
Transfer of proceedings	9	(3)
Transfer of proceedings from the High Court to the Tribunal	12	(4)
Transfer of proceedings from the Tribunal to the High Court	16	(2)
Actions for damages	18	(6)
Competition law defences in commercial litigation	24	(5)
Interim injunctions	29	(8)
Directors' Disqualification	37	(5)
Criminal Proceedings by the Serious Fraud Office (or the OFT)	42	(16)
Structure of the offence	42	(2)
The policy behind criminalization	44	(4)
The investigation	48	(9)
From investigation to trial	57	(1)
References to the Court of Justice for Preliminary Rulings	58	(5)
Civil Enforcement in the US	63	(17)
Civil enforcement by the Department of Justice, Antitrust Division	63	(4)
Actions for damages	67	(4)
Jurisdiction of the US courts in antitrust matters	71	(9)
Criminal Proceedings by the US Department of Justice, Antitrust Division	80	(6)
Conclusion	86	(21)
Overview of Relevant Legal Principles	107	(34)
Introduction	1	(2)
Procedural Autonomy of Member States under Community Law	3	(2)
Inherent Jurisdiction of the English Courts to Regulate Concurrent Proceedings	5	(3)
Res Judicata and Abuse of Process	8	(6)
Ne Bis in Idem (Double Jeopardy)	14	(26)
The problem	14	(2)
Ne bis in idem	16	(7)
Legal certainty and legitimate expectations	23	(4)
Decisions prohibiting an agreement or conduct and/or imposing a fine	27	(1)
Decisions finding that there has been no infringement	28	(1)
Decisions accepting commitments and informal settlements	29	(4)
Decisions rejecting complaints	33	(1)
Decisions based on lack of evidence	34	(1)
Other case closure decisions	35	(1)
Ne bis in idem in respect of multiple fining decisions	36	(4)
Privilege against Self-Incrimination	40	(18)
The privilege and concurrent proceedings	40	(4)
The privilege under Article 6 of the European Human Rights Convention	44	(7)
Trends and tensions in English law	51	(7)
Public Interest Immunity and Confidence	58	(1)
Conflicting Public Policies and Fair Procedures	59	(4)
Conclusion	63	(78)
II THE INTERPLAY BETWEEN ADMINISTRATIVE, CIVIL, AND CRIMINAL PROCEEDINGS
Stays	141	(32)
Introduction	1	(6)
Stays of Civil Proceedings in Community Law	7	(33)
Concurrent powers under Community law	7	(3)
Duty of cooperation in the EC Treaty	10	(2)
Discretion to order a stay	12	(10)
The case law of the Court of Justice	22	(10)
Rationale of Community law requirements on stays of civil proceedings	32	(8)
Discretion of the National Courts under Community Law	40	(4)
Duty of cooperation	40	(2)
Procedural autonomy	42	(2)
The Approach of the English Courts	44	(28)
Prospective Commission proceedings	44	(11)
Pending Commission proceedings	55	(17)
Stays in Proceedings for Breach of UK Competition Law	72	(8)
Monetary Claims before the Competition Appeal Tribunal	80	(5)
Jurisdiction of the Tribunal under Competition Act 1998, section 47A	80	(2)
Concurrent proceedings under Competition Act 1998, section 47A	82	(1)
Discretion of the Tribunal under Competition Act 1998, section 47A(5)(b)	83	(1)
Monetary claims issued in the High Court	84	(1)
Conclusion	85	(88)
Effect of Administrative Decisions	173	(32)
Introduction	1	(3)
Objective Effect of Decisions of the Commission	4	(29)
The problem	4	(2)
Relevance of the administrative decision	6	(2)
Binding effect of Commission decisions	8	(6)
Application of the abuse of process doctrine	14	(5)
The duty of cooperation and the principle of consistency of decisions	19	(6)
Codification of the Masterfoods case in Community law	25	(1)
The debate on codification in the UK	26	(3)
Commission decisions challenged before the Community courts	29	(3)
Decisions accepting commitments	32	(1)
Effect of Commission Decisions on Third Parties	33	(37)
Preclusive effect under Article 230(4) EC	33	(7)
Persons to whom the preclusive effect applies	40	(7)
Effect of Commission decisions on third parties in Bernard Crehan v Inntrepreneur Pub Co (CPC)	47	(23)
Effect of Judgments of the Community Courts	70	(4)
Binding Effect of OFT Decisions	74	(10)
Competition Act 1998, section 58	74	(3)
Competition Act 1998, section 58A	77	(2)
Taxonomy of binding effects of administrative decisions	79	(5)
Conclusion	84	(121)
Disclosure and Admissibility of Evidence	205	(78)
Introduction	1	(7)
Use in Further Administrative Proceedings of Information Obtained by the Commission	8	(35)
Use in further Commission proceedings	8	(8)
Use in national administrative proceedings	16	(1)
The Spanish Banks case	17	(3)
Further use outside the scope of Regulation 1/2003, Article 12(2)	20	(5)
Protection of business secrets in the context of Regulation 1/2003, Article 12	25	(6)
Position of leniency applicants and exchange of information	31	(12)
Use in Further Administrative Proceedings of Information Obtained by the OFT	43	(23)
General	43	(3)
Use for other OFT proceedings	46	(7)
Disclosure by the OFT for administrative proceedings by other public authorities	53	(13)
Use in Civil Proceedings of Information Obtained by the Commission	66	(45)
Disclosure by the Commission to national courts	66	(16)
Use of evidence for civil proceedings by parties involved in Commission proceedings	82	(15)
Disclosure and admissibility of evidence outside Community law	97	(3)
Privilege and admissibility under national law	100	(2)
Libel actions	102	(3)
Public policy defence in actions in contract and tort	105	(1)
Public interest immunity	106	(5)
Use in Civil Proceedings of Information Obtained by the OFT	111	(50)
Statutory restrictions on disclosure	111	(5)
Disclosure by the OFT for evidence in civil proceedings	116	(10)
Public interest immunity	126	(19)
Protection of confidentiality and business secrecy	145	(11)
Position of leniency applicants	156	(5)
Use in Administrative Proceedings of Evidence Disclosed in Civil Proceedings	161	(29)
Subsequent use of documents obtained through civil disclosure: Rule and exceptions	161	(3)
Documents read to or by the court	164	(4)
Permission of the court	168	(9)
Consent	177	(1)
Protection orders under CPR, rule 31.22(2)	178	(3)
Privilege against self-incrimination	181	(9)
Conclusion	190	(93)
Criminalization of Cartels	283	(42)
Introduction	1	(5)
Cartel Offence and Concurrent Proceedings	6	(8)
Link with relevant prohibition provisions	6	(4)
Nature of the parties in criminal and other proceedings	10	(3)
Factual overlaps and concurrent prodeedings	13	(1)
Criminal and Civil Proceedings	14	(15)
Stays	14	(9)
Disclosure and admissibility of evidence	23	(6)
UK Administrative and Criminal Proceedings: Stays	29	(3)
UK Administrative and Criminal Proceedings: Evidence	32	(18)
Parallel investigations	32	(1)
Use of evidence obtained in criminal investigations	33	(1)
Use of evidence obtained in administrative investigations	34	(12)
Other considerations relevant to disclosure	46	(4)
Relationship with EC Enforcement	50	(13)
General	50	(3)
Stays	53	(9)
Effect of Commission and Community Courts decisions	62	(1)
Privilege against Self-Incrimination in Commission Proceedings	63	(10)
The problem	63	(1)
Rights of defence and privilege in the Orkem case	64	(4)
Incriminating and non-incriminating questions	68	(4)
Broader scope of the privilege in English criminal law	72	(1)
Admissibility of Evidence Obtained in Commission Proceedings	73	(17)
Evidence obtained by the Commission or national competition authorities	73	(8)
Commission decisions	81	(9)
Conclusion	90	(235)
III INTERNATIONAL COMMERCIAL ARBITRATION
Arbitration of Competition Law Disputes in the EU and the US	325	(24)
Introduction	1	(4)
Arbitrability of Competition Law Disputes	5	(7)
Disputes involving competition law issues	5	(4)
Implications of arbitrability for concurrent proceedings	9	(3)
Commercial Arbitration under Community Law	12	(10)
The problems	12	(2)
The nature of commercial arbitration	14	(3)
Review of arbitral awards	17	(5)
Application of EC Competition Law by Arbitral Tribunals	22	(19)
Power of arbitrators to apply Articles 81 and 82 EC	22	(2)
Article 81(3) EC: The legal position	24	(3)
Article 81(3) EC: Practical considerations	27	(4)
The problem of the applicable law	31	(5)
Application of competition law by the arbitral tribunal on its own initiative	36	(5)
Arbitration of Competition Law Disputes in the US	41	(6)
Conclusion	47	(302)
Arbitration and Concurrent Proceedings	349	(30)
Introduction	1	(5)
Three-Dimensional Framework Analysis	6	(11)
General	6	(1)
Arbitrability and alternative safeguards	7	(10)
Stays	17	(16)
Complex litigation and powers of the courts	17	(1)
Position of the arbitral tribunal	18	(3)
Policy considerations	21	(4)
Powers and duties of arbitrators	25	(1)
The legal framework	26	(7)
Evidence	33	(16)
General	33	(1)
Use for administrative investigations of documents and evidence produced in arbitral proceedings	34	(1)
Use for arbitration of evidence obtained by competition authorities	35	(14)
Effect of Administrative Decisions	49	(5)
Arbitration and Criminal Proceedings	54	(5)
Conclusion	59	(320)
IV STRATEGY AND TACTICS IN CONCURRENT PROCEEDINGS
Tactical Implications of Concurrent Proceedings	379	(28)
Introduction	1	(8)
Attack Tactics	9	(38)
Administrative and civil proceedings	9	(9)
Choice of forum	18	(11)
Selecting a competition authority and a judicial forum in parallel proceedings	29	(10)
Pressing for criminal charges	39	(2)
Use of evidence for multiple purposes	41	(6)
Defence Tactics	47	(19)
Seeking stays as delaying tactics or as a matter of fairness	47	(9)
Declaration of validity or non-liability	56	(10)
Conflicts of Interests between Companies and Individuals	66	(19)
General	66	(3)
The position of directors	69	(11)
The position of other employees	80	(5)
Conclusion	85	(322)
Leniency and Concurrency	407	(24)
Introduction	1	(5)
The 2002 Commission Leniency Notice	6	(4)
The OFT Leniency Guidelines	10	(5)
No-Action Letters in England, Wales, and Northern Ireland	15	(6)
The US Department of Justice, Antitrust Division Leniency Policies for Companies and Individuals	21	(8)
Timeliness of the Leniency Application	29	(6)
Coordination of multiple applications in non-criminal infringements	30	(2)
Coordination of multiple applications in criminal infringements	32	(3)
Consequences of Leniency Applications in Civil Proceedings	35	(6)
Dealing with Leniency Applications: New Skills for Legal Advisers in International Cartel Cases	41	(10)
Multiple applications	41	(1)
Timeliness of applications	42	(2)
Amnesty Plus	44	(3)
Penalty Plus and the Omnibus Question	47	(1)
A `paperless' procedure?	48	(2)
Civil litigation	50	(1)
Conclusion	51	(380)
V CONCLUDING REMARKS
General Conclusions	431	(10)
Introduction	1	(5)
Stays	6	(7)
Binding Effect of Administrative Decisions	13	(4)
Disclosure and Admissibility of Evidence	17	(5)
Implications of Reforms in the EU and the UK: A `Sea Change' in the Enforcement of Competition Law?	22	(419)
Appendix 1: Commission Notice on Cooperation within the Network of Competition Authorities	441	(14)
Appendix 2: Commission Notice on the Co-operation between the Commission and the Courts of the EU Member States on the Application of Articles 81 and 82 EC	455	(10)
Appendix 3: OFT Guidance on Powers for Investigating Criminal Cartels	465	(14)
Bibliography	479	(6)
Index	485