One way to do that would be expand the government's settlement policy. As is stands, the Administrative Council for Economic Defense's (CADE) leniency program affords "full immunity from administrative and criminal charges to the first company or individual" that reports a violation, notes PaRR.
However, the second or third company to come forward receives no such benefit, which is why, in part, CADE has tried to get rules on settlements changed. The downside is that "unlike leniency agreements, such settlements do not automatically grant immunity from criminal prosecution, and this may discourage parties to report infringements," according to the report.
In India, parts of the recently amended Competition Act are raising eyebrows among in-house counsel. Section 5A of the law allows the Indian government and the Competition Commission of India (CCI) "to set different thresholds for different industry segments" -- a departure from regulatory norms in other parts of the world.
"Initially, the insertion of section 5A was triggered by the need for greater vigilance of the Indian pharmaceutical sector, but in-house legal counsel fear that such an amendment means that other industries will now be fall under the shadow of CCI overreach," the report states, adding: "Nowhere else in the world have competition commissions introduced industry specific review thresholds, said Bharat Vasani, general counsel at Tata Sons Limited, the holding company for the Tata Group."
And in the European Union, in-house counsel need to continue to be mindful of separate enforcement objectives at both the E.U. and member state level.
"The [European Commission] is increasingly focusing on state aid and merger control, where if they do not act no one will, as well as E.U.-wide cartels and high-profile dominance cases," Cleary Gottlieb Steen & Hamilton antitrust partner Nicholas Levy told PaRR. "That leaves quite a significant part of competition policy that is largely being enforced at the national level, including joint ventures that do not meet the E.U. merger control criteria and vertical restraints."
Subscribe to Corporate Counsel
