CARTEL CRIMINALITY
Cartel Criminality
The Mythology and Pathology of Business Collusion
CHRISTOPHER HARDING
JENNIFER EDWARDS
Aberystwyth University, UK
First published 2015 by Ashgate Publishing
Published 2016 by Routledge
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Copyright Christopher Harding and Jennifer Edwards 2015
Christopher Harding and Jennifer Edwards have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the authors of this work.
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
The Library of Congress has cataloged the printed edition as follows:
Harding, Christopher, author.
Cartel criminality : the mythology and pathology of business collusion / By Christopher Harding and Jennifer Edwards.
pages cm
Includes bibliographical references and index.
ISBN 978-1-4094-2529-8 (hardback) -- ISBN 978-1-4094-2530-4 (ebook) -- ISBN 978-1-4724-0312-4 (epub) 1. Antitrust law--Criminal provisions. 2. Cartels. 3. Commercial crimes. 4. Restraint of trade. I. Edwards, Jennifer, (Research assistant), author. II. Title.
K3854.H37 2015
364.168--dc23
2015025269
ISBN 9781409425298 (hbk)
ISBN 9781315570907 (ebk)
Contents
List of Tables
List of Figures
Preface
This work sets out ambitiously to be a first dedicated criminology of business cartels. The topic that of now widely condemned and intensively regulated business strategies such as price fixing, market sharing and bid rigging has become the subject of an increasingly voluminous critical literature, which is for the most part to be found in the academic domains of law and economics. But as the policy and practice of regulation has moved into a higher gear and enforcement has become more repressive, with an increasing resort to criminal law and quasi-criminal sanctions, the time is ripe for a detailed criminological investigation of the phenomenon of cartelisation and its legal control. In so far as there has been a significant programme of criminalisation of business cartels, this incursion of criminal law into the sphere of business activity deserves critical attention and assessment, not least for what it reveals about the nature of contemporary governance and the interface of the political, the economic and the legal in global society. The justification for such a policy of enforcement and an account of its operation is an important matter, since this is a major public intervention, involving significant resources and consequences. The focus of this criminological enquiry has been the working and impact of the legal sanctions that have been deployed more and more extensively and in an increasingly determined fashion over the last 30 or so years. Much of the material drawn upon in the following report of this research has been assembled as part of a research project carried out by CH and JE at Aberystwyth University, and funded by a grant from the Leverhulme Trust: Explaining and Understanding Business Cartel Collusion.
The research has been undertaken in a certain empirical manner, in the sense of examining the actual record of enforcement in relation to major international business cartels since the start of the 1980s. The method has been described as biographical, since the analysis and argument have been based on narratives of enforcement, which have been used to present an historical account of the prehistory, the actual operation of cartels and anti-cartel legal enforcement, and then cartelist after-life. The centrepiece of the discussion set out here is a selection of cartel biographies, which seek to draw out the salient features of cartel activity and its legal regulation. The reader of the book will be presented first with a theoretical and methodological discussion of the topic and the approach being taken in the research, then with a set of narratives, and finally with some concluding analysis and argument derived from those narratives. Without wishing to spoil too much the readers anticipation of those conclusions, there is a clear message which emerges from a reading of those narratives that global and international cartel regulation is a complex and imperfectly understood matter, an uneasy amalgam of strong rhetoric and uncertain outcome, bedevilled by inarticulate ambition, dauntingly complicated issues of agency and, above all, diverse cultures of both business activity and legal enforcement. Anti-cartel enforcement has become big global business, but its motivation, operation and outcomes, despite the assured tone adopted by many regulators, economists, lawyers and politicians, remain hard to pin down. In this sense, a criminological investigation and its conclusions appear more unsettling than many of the assumptions and arguments of lawyers and economists, the two groups of experts who have to date arguably been driving the policy and regulatory agenda.
As already indicated, the underlying research here has most recently been based on the project based at Aberystwyth and funded by the Leverhulme Trust, with CH as the principal investigator and JE as the project researcher and co-author. For CH the subject and the research project have a prehistory which could be turned into another narrative in its own right. As with any story-telling, the problem is to know where to begin. Perhaps, once upon a time in the early 1970s, cartel regulation was not exactly a new subject as such (as will be evident from some of the discussion in this book), but at that time its European and criminal law dimensions, now so significant and manifest, were barely contemplated. The seminal Quinine and Dysestuffs Cases had only just happened when CH and fellow postgraduate student William Allan met on Waterloo station half way through the Christmas vacation to exchange the one copy of Arved Deringers 1968 book The Competition Law of the EEC (referred to in ) then available in the University of Exeter library. Well, that was the way the subject was studied in those days. Some, in fact many, years later, the same two were together again, talking about business cartels, CH by then Professor of Law at Aberystwyth University and Bill with much experience of competition law practice working for Linklaters, and embarking upon a term of office with the UK Competition Appeal Tribunal. Walking up and down in Bills garden, CH asked whether Bill thought there was any evidence that large firms responded positively to anti-cartel sanctions and reformed their way of doing business as a result. Bills remarks were typically insightful, but served only to reinforce CHs view of the complexity and obscurity of the subject. And in such a way the Leverhulme project and its underlying criminological approach began to materialise and take on this present shape.
