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Towards A Directors’ Competition Disqualification Regime in Nigeria: Lessons from the UK

Published online by Cambridge University Press:  05 April 2021

Pereowei Subai
Affiliation:
Niger Delta University, Wilberforce Island, Nigeria
Samet Caliskan
Affiliation:
Muş Alparslan University, Muş, Turkey
Corresponding

Abstract

This article argues that Nigeria should introduce a competition disqualification regime for company directors as a deliberate strategy to foster corporate compliance with the Federal Competition and Consumer Protection Act 2018. It contends that the custodial and financial sanctions provided for under the act may not sufficiently deter directors from engaging in anti-competitive behaviour. It seeks to demonstrate that the “threat” of incarceration, which would ordinarily have a strong deterrent effect, is rarely imposed, as courts tend to prefer imposing fines on directors and individuals who breach competition law. For that reason, the article proposes that Nigeria should adopt a strategy of disqualifying directors who oversee companies that breach competition law, or who are complicit in that regard, as a means of complementing existing sanctions. In order to achieve its objective, the article examines the competition disqualification regime in the UK in order to extract valuable lessons that Nigeria can emulate.

Type
Research Article
Copyright
Copyright © SOAS University of London 2021. Published by Cambridge University Press on behalf of SOAS University of London

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Footnotes

*

Senior lecturer, Faculty of Law, Niger Delta University.

**

Assistant professor of law, Muş Alparslan University.

References

1 See for instance: Nigerian Communications Act of 2003, sec 92; Competition Practices Regulation of 2007; Telecommunications Network Interconnection Regulations 2007, regs 10–12; Investment and Securities Act 2007, part 12 (now repealed), which, in regulating mergers, had authorized the Securities and Exchange Commission to direct the breakup of monopolies whose activities were in restraint of trade.

2 Some of these SOEs collaborated with privately owned companies that periodically enjoyed state patronage and support. This was particularly prominent in the petroleum sector, where the Nigerian National Petroleum Corporation partnered with international oil companies through joint ventures and production sharing contractual arrangements.

3 There was a brief hiatus from 1979–83 and another in 1993 when the country briefly returned to civilian rule.

4 Keen to improve the performance of these entities, Nigeria passed the Public Enterprises (Privatisation and Commercialization) Act of 1999 and set about either privatizing or commercializing many of its SOEs. During this period, Nigeria liberalized sectors that had previously been closed to private enterprise in order to usher in robust competition. Some of the firms that were either privatized or commercialized include National Fertilizer Company of Nigeria, Nigerian Telecommunications, Nigerdock and Aluminium Smelter Company of Nigeria. See CB Ndubuisi “Economic policy implications of port concession in Nigeria” (2016, Walden Dissertation and Doctoral Studies Collection), available at: <https://scholarworks.waldenu.edu/cgi/viewcontent.cgi?article=4290&context=dissertations> (last accessed 4 March 2021).

5 Dawar and Ndlovu note that bills had been presented in 2002, 2008, 2011, 2012 and 2015: Dawar, K and Ndlovu, NA comparative assessment of competition in Africa: Identifying drivers of reform in Botswana, Ethiopia, and Nigeria” (2018) 6 Journal of Antitrust Enforcement 150CrossRefGoogle Scholar at 152.

6 Id at 155.

7 Id at 151.

8 Ibid.

Ibid

9 Kim and Choi claim that, as at 2020, over 130 countries had enacted some form of competition law: Kim, D and Choi, YPModernization of competition law and policy in Egypt: Past, present and future” (2020) 64/1 Journal of African Law 107CrossRefGoogle Scholar at 109.

10 See Bergh, RV Comparative Competition Law and Economics (2017, Edward Elgar)Google Scholar at 115.

11 WE Kovacic “Antitrust and competition policy” in BE Hawk (ed) Transition Economies: A Preliminary Assessment in International Antitrust Law and Policy (1999, Fordham Corporate Law Institute) 513.

12 See, for example, Adelaragbe, BAre the energy laws of Nigeria sufficient to promote and preserve competition?” (2003) 9 International Energy Law and Taxation Review 251Google Scholar.

13 See Nkordeh, N et al. “The Nigerian telecommunication industry: Analysis of the first fifteen years of the growths and challenges in the GSM market (2001–2016)” (2017) 1 Proceedings of the World Congress on Engineering and Computer Science 25Google Scholar, available at: <http://www.iaeng.org/publication/WCECS2017/WCECS2017_pp80-84.pdf> (last accessed 30 January 2021).

14 See O Arowolowo and F Folarin “Nigeria's telecommunications industry: Looking back, looking forward” Inside Tax (2015, Deloitte), available at: <https://www2.deloitte.com/content/dam/Deloitte/ng/Documents/tax/inside-tax/ng-nigeria-telecommunications-industry-looking-back-looking-forward.pdf> (last accessed 4 March 2021); see also Nigerian Communications Commission “Subscriber statistics” (2020), available at: <https://www.ncc.gov.ng/stakeholder/statistics-reports/subscriber-data> (last accessed 4 March 2021).

15 In fact, the English common law dislike of contracts in restraint of trade can be said to be a precursor to current competition law in the UK. Still, it was only after the Second World War that the Labour government enacted the Monopolies and Restrictive Practices Act of 1948.

16 The USA enacted the Sherman Antitrust Act in 1890 and, in so doing, heralded an era of competition regulation in that country. On the other hand, the EU introduced competition regulation via part 3 of the Treaty of Rome in 1957. See Dabbah, MCompetition law and policy in developing countries: A critical assessment of the challenges to establishing an effective competition law regime” (2010) 33/3 World Competition 457Google Scholar at 461.

17 See O Fayokun et al “A review of the Federal Competition and Consumer Protection Act 2019” (March 2019, Aluko & Oyebode), available at: <https://www.aluko-oyebode.com/insights/review-of-the-federal-competition-and-consumer-protection-act-2019/> (last accessed 30 January 2021).

18 FCCPA, sec 2(2).

19 Id, sec 2(3).

20 Id, sec 165.

21 Investment and Securities Act 2007, secs 118–27.

22 See FCCPA, sec 1 generally.

23 Id, secs 1 and 2.

24 Id, part 8 (secs 59–69).

25 Id, part 9 (secs 70–75).

26 Id, part 10 (secs 76–87).

27 Id, part 11 (secs 88–91).

28 Id, part 12 (secs 92–103).

29 Id, part 13 (secs 104–06).

30 Id, part 14 (secs 107–13).

31 Id, part 15 (secs 114–33).

32 Id, part 16 (secs 134–45).

33 Id, part 17 (secs 146–55).

34 Id, sec 69(1) and (2).

35 Id, secs 67(1) and 69(3).

36 Id, secs 72(1) and 73(3).

37 Id, part 11 (sec 90(5), (6) and (7)).

38 Id, sec 96(7).

39 Id, sec 80.

40 Id, secs 69(1)(a), 69(3)(a), 107(4)(a), 108(3)(a), 109(3)(a), 111(2)(a), 112(a) and 135(2)(a).

41 Id, secs 69(2)(a), 69(3)(b), 107(4)(b), 108(3)(b), 109(3)(b), 111(2)(b), 112(b) and 135(2)(b). A firm that abuses its dominant market position is liable to pay not less than 10% of its turnover in the preceding year.

42 Id, secs 69(2), 69(4)(d), 90(7), 107(4), 108(3)(c), 109(3)(c), 111(2)(c), 112(c), 135(3) and 155(c). But see also sec 74(2).

43 Id, secs 39–58.

44 Id, sec 53.

45 Id, sec 56.

46 Id, sec 39(2).

47 Id, sec 47(1)(a)–(b).

48 Id, sec 50(2).

49 Id, sec 51(1).

50 Id, sec 51(2).

51 Id, sec 52(1).

52 Id, sec 54.

53 Id, sec 55.

54 Kim and Choi “Modernization of competition law”, above at note 9 at 122. For example, there is the Anti-Trust Division of the Department of Justice in the USA, the EU Competition Commission in the EU, the Competition and Markets Authority in the UK, and the Competition and Consumer Commission for Australia.

55 FCCPA, part 2 (secs 3–16) established the FCCPC. Its functions and powers are contained in part 3 (secs 17–18), management and staff are covered by part 4 (secs 19–26), financial provisions are covered by part 5 (secs 23–26), while its enforcement powers are contained in part 6 (secs 27–38).

56 Id, sec 164.

57 Id, sec 165.

58 Id, part 6.

59 See Enterprise Act 2002 (UK); Enterprise and Regulatory Reform Act 2013 (UK); Sherman Act (USA), sec 1; Competition Act, 1985 (Canada), sec 45; The Restrictive Trade Practices Law 1988 (Israel); Monopoly Regulation and Fair Trade Act 2013 (South Korea); Economic Crimes Law No 8, 137/90 (Brazil); The Competition Act (Consolidation Act No 700 of 18 June 2013) (Denmark), sec 22(3); and Corporations Act 2001 (Australia), sec 104.

60 See FCCPA, secs 51(1), 69(1), 73(1), 74, 80(1) and 80(2), for example. The CCPT may also impose administrative fines in certain cases under secs 18 and 51.

61 In 2020 for instance, it imposed a EUR 1.5 billion fine on Google for antitrust violations in the online advertising market, the third it has imposed on the technology giant since 2017. In 2009, it fined Intel EUR 1.06 billion for giving illegal rebates to some firms on the condition that they buy most of their processors from it. See D Martin “Intel challenges A$1.8 billion fine over antitrust behavior” (11 March 2020) CRN, available at: <https://www.crn.com.au/news/intel-challenges-a18-billion-fine-over-antitrust-behavior-539168> (last accessed 30 January 2021).

62 For example, Apple was fined EUR 1.1 billion in 2020 by France's competition authority for orchestrating a distribution cartel with wholesalers that lasted several years, after it was found that the firm had effectively imposed prices on some retailers and had “abused the economic dependence” of some of its premium resellers in France: S Schecner “Apple faces $1.2 billion fine for alleged French distribution cartel” (16 March 2020) Wall Street Journal, available at: <https://www.wsj.com/articles/apple-faces-1-2-billion-fine-for-alleged-french-distribution-cartel-11584370369> (last accessed 30 January 2021). Further, in 2020, Brazil's Administrative Council for Economic Defence fined five companies for their involvement in an industrial cartel: JL Kessler and SW Waller International Trade and US Antitrust Law (2nd ed, 2006, Thomson Reuters). Also, in 2016, South Korea fined Qualcomm Inc, a US chip maker, the equivalent of $854 million for unfair business practices in patent licensing and modem chip sales: SY Lee and S Nellis “South Korea fines Qualcomm $854 million for violating competition laws” (28 December 2016) Reuters, available at: <https://www.reuters.com/article/us-qualcomm-antitrust/south-korea-fines-qualcomm-854-million-for-violating-competition-laws-idUSKBN14H062> (last accessed 30 January 2021).

63 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705.

64 See generally, P Subai “Between tort creditors and shareholders of closely held companies: Another look at the doctrine of shareholder immunity” (2015) 12 Nigerian Law and Practice Journal 6.

65 See Gilford Motors v Horne (1933) Ch 935; Adeyemi v Lan and Baker (Nigeria) Ltd (2000) 7 NWLR (pt 663). See also MT Moore “A temple built on faulty foundations: Piercing the corporate veil and the legacy of Salomon v Salomon” (2006) 3 Journal of Business Law 180.

66 Some of the sanctions imposed on directors may also extend to other corporate officers and advisers, such as managers, secretaries, auditors and solicitors. However, this article focuses on company directors, while noting that the suggestions made may apply to these other positions as well.

67 See Enterprise Act 2002 (UK), sec 188; Enterprise and Regulatory Reform Act 2013 (UK); Sherman Act (USA), secs 1, 2, 3 and 13; Competition Act, 1985 (Canada), sec 45; The Restrictive Trade Practices Law 1988 (Israel); Monopoly Regulation and Fair Trade Act 2013 (South Korea); Economic Crimes Law No 8, 137/90 (Brazil); The Competition Act (Consolidation Act No 700 of 18 June 2013) (Denmark), sec 22(3); and Corporations Act 2001 (Australia), sec 104.

68 Sherman Act, secs 1, 2, 3 and 13; French Commercial Code, art L 420-6, sec 298.

69 For instance, see FCCPA, secs 74(2), 90(7), 107(4)(c), 108(3)(c), 109(3)(c), 111(3)(c), 112(3)(c), 135(3) and 155(c).

70 See JM Connor and RH Lande “Cartels as rational business strategy: Crime pays” (2012) 34 Cardozo Law Review 427 at 444–45.

71 See WPJ Wils “The European Commission's 2006 guidelines on antitrust fines: A legal and economic analysis” (2007) 30 World Competition 197.

72 FCCPA, sec 69(1).

73 Id, sec 69(4).

74 Id, sec 74(2). See also secs 90(7), 107(4)(c), 108(3)(c), 109(3)(c), 111(3)(c), 112(3)(c), 135(3) and 155(c).

75 They include the UK, Argentina, Australia, Brazil, Canada, Colombia, Czech Republic, Hong Kong, Indonesia, Lithuania, Mexico, Russia, Slovenia and Sweden.

76 In countries including South Africa, France, Germany, India, New Zealand, Australia, Nigeria, Hong Kong and the UK, directors are increasingly being disqualified for their misdeeds and breaches. Moreover, see S Caliskan and P Subai “A comparative study on disqualification of company directors in the UK and Nigeria: Lessons for Turkey” (2020) 27 Journal of Financial Crime, available at: <https://doi.org/10.1108/JFC-12-2019-0159> (last accessed 30 January 2021).

77 The report of the Review Committee on Insolvency Law and Practice (Cork Report) made extensive recommendations for the review of insolvency law in the UK, among which was disqualification of directors in certain instances: J Loughrey “Smoke and mirrors? Disqualification, accountability and market trust” (2015) 9/1 Law and Financial Markets Review 52.

78 See CDDA, sec 3; Corporations Act 1993 (New Zealand), sec 383(1)(c)(i); Corporations Act 2001 (Australia), sec 206E; and Companies Act 2013 (India), sec 164.

79 For example, in the UK and New Zealand, the grounds upon which a person may be disqualified from being a director may apply to persons who commit such acts overseas as well. See CDDA, secs 2, 3, 5, 6, 8, 10, 12, 16, 22 etc; and New Zealand Corporations Act, sec 383(1)(ca). Similarly, in Australia, the court may disqualify a person who is already disqualified under a foreign jurisdiction, provided the court is satisfied that their disqualification under that law is justified: Australian Corporations Act, sec 206EAA.

80 R Williams “Disqualifying directors: A remedy worse than the disease?” (2007) 7 Journal of Corporate Law Studies 213 at 214.

81 KTW Ong “Disqualification of directors: A faulty regime?” (1998) Company Lawyer 1.

82 Williams “Disqualifying directors”, above at note 80 at 219.

83 Although the word “unfit” was not used in the Companies and Allied Matters Act 2020, it was referred to in the Investment and Securities Act 2007, sec 13(bb), although even there it was not defined. Unfitness generally refers to disqualifying a person from directing companies by reason of their misconduct or incompetence.

84 In the UK, New Zealand and Australia, a person can now be disqualified from being a director on the basis of his wrongdoing committed in another country: CDDA, secs 2, 3, 5, 6, 8, 10, 12, 16, 22 etc; New Zealand Corporations Act, sec 385(10); and Australian Corporations Act, sec 206E.

85 See Companies and Allied Matters Act, sec 280(5); Australian Corporations Act, sec 9; CDDA, sec 4; and New Zealand Corporations Act, sec 126.

86 See Companies and Allied Matters Act, secs 20, 257, 258, 387 and 509.

87 See Caliskan and Subai “A comparative study”, above at note 76 at 11.

88 Enterprise Act, secs 188–90.

89 This was done via the Enterprise Act, sec 204, which amended the CDDA by inserting sec 9A–E. The UK is not alone in applying competition disqualification. For instance, a person in Australia who manages an undertaking that breaches competition law may be disqualified from directing a company: Australian Corporations Act, sec 206EA; see also Australia's Competition and Consumer Act 2010, sec 286E. Australian corporations and company legislation was established on the basis of the principles of UK company law, from which it departed significantly through enacting the Corporations Act 2001. Part 2D.6 of this act introduced a number of grounds and three types of disqualification (automatic disqualification, disqualification on application and disqualification by a regulator). The majority of disqualifications in Australia are made by the Australian Securities and Investment Commission, which does not require a court order for that purpose. Between 2009 and 2015, 369 of 420 directors were disqualified by the commission. See T Blackie and JN De Koker “Australia” in JJ Du Plessis and JN De Koker (eds) Disqualification of Company Directors: A Comparative Analysis of the Law in the UK, Australia, South Africa, the USA, and Germany (2017, Routledge) 69 at 69.

90 For further discussion, see J Galloway “Securing the legitimacy of individual sanctions in UK competition law” (2017) 40/1 World Competition 121.

91 CDDA, sec 9A.

92 Id, sec 9B.

93 This section was added by the Enterprise Act to extend directors’ disqualification to breach of competition law.

94 CDDA, sec 9A(2).

95 Id, sec 9A(3).

96 Competition Act, chap 1 and the EU Treaty, art 101 contain prohibitions on agreements that prevent, restrict or distort competition; Competition Act, chap 1 and the EU Treaty, art 102 contain prohibitions on the abuse of a dominant market position.

97 Emphasis added.

98 CDDA, sec 9A(6)(a). In this respect, sec 9A(7) makes it clear that it is irrelevant that the director did not know that the conduct amounted to a breach of competition law.

99 Id, sec 9A(6)(b).

100 Id, sec 9A(6)(c).

101 Emphasis added.

102 Emphasis added.

103 Sched 1 deals with matters to be taken into account in all cases of directors’ disqualification. They include: the extent to which the person was responsible for the causes of any material contravention by a company or overseas company of any applicable legislative or other requirement; where applicable, the extent to which the person was responsible for the causes of a company or overseas company becoming insolvent; and the nature and extent of any loss or harm caused (or potential loss or harm that could have been caused) by the person's conduct in relation to a company or overseas company.

104 CDDA, sec 1A.

105 S Caliskan “Directors’ disqualification in UK competition law: Has the dog started barking?” (2020) 41/10 European Competition Law Review 509.

106 The first set of CDOs arose from an action that was instituted against three company directors: D Brammer and B Allison (both of Dunlop Oil and Marine Ltd) and P Whittle (of PW Consulting) in R v Whittle (Marine Hose) [2008] EWCA Crim 2560. In that case, the three accused directors had formed and carried on a marine hose cartel between 2003 and 2007. They were subsequently found guilty, fined and disqualified from acting as company directors for periods of between five to seven years. In the second case, relating to the supply of precast concrete drainage products (ref CE/9705/12), Barry Kenneth Cooper, chief executive of Stanton Bonna Concrete Ltd, was disqualified in 2017 from acting as a company director for seven years for breaching the Enterprise Act, sec 188; this was in addition to a two-year suspended prison sentence. The penalty was issued as a result of the fact that Stanton Bonna Concrete Ltd, FP McCann Ltd and CPM Group Ltd were involved in an anti-competitive agreement and were fined more GBP 36 million following their voluntary admission of guilt. See “Supply of precast concrete drainage products: Criminal investigation” (15 September 2017, CMA), available at: <https://www.gov.uk/cma-cases/criminal-investigation-into-the-supply-of-products-to-the-construction-industry> (last accessed 30 January 2021).

107 The four CDU cases concerned: Trod Ltd, available at: <https://www.gov.uk/government/news/cma-issues-final-decision-in-online-cartel-case> (last accessed 4 March 2021); Abbott and Frost Estate Agents Ltd, available at: <https://www.gov.uk/cma-cases/residential-estate-agency-services-in-the-burnham-on-sea-area-director-disqualification> (last accessed 4 March 2021); Stanton Bonna, available at: <https://www.gov.uk/cma-cases/supply-of-precast-concrete-drainage-products-director-disqualification> (last accessed 4 March 2021); and JLL and Fourfront, available at: <https://www.gov.uk/cma-cases/design-construction-and-fit-out-services-director-disqualification> (last accessed 4 March 2021). The Trod case followed a finding by the CMA in 2016 that Trod Ltd and GB Eye Ltd (which were competing sellers on Amazon) had connived to implement a mechanism that would have had the effect of avoiding price competition by using automated re-pricing software to monitor and adjust their online prices, thereby ensuring that neither was undercut by the other. Following this finding, Daniel Aston, a director of Trod Ltd, requested a disqualification undertaking, which was accepted, and he was disqualified from acting as a director for five years; see S Szlezinger et al “Director liability for competition law breaches: The CMA's first UK director disqualification” (2 December 2016, DLA Piper), available at: <https://www.dlapiper.com/en/uk/insights/publications/2016/12/director-liability-for-competition-law-breaches/> (last accessed 30 January 2021). Similarly, in 2018, Abbott and Frost participated in a cartel with six other estate agents to fix a minimum level of commission fees in Burnham-on Sea. David Baker and Julian Frost, who were directors of Abbott and Frost, had been personally involved and failed to take steps to stop the practice. They consequently offered disqualification. Their requests were accepted and they were disqualified for three and three-and-a-half years accordingly. In addition, following the institution of disqualification proceeding by the CMA against Graham Thompson (a former director of Saxons PS Limited, The Property Group Limited and Warne Investments Limited), he also offered himself to be disqualified and was disqualified for five years. In the Stanton Bonna case, in addition to the disqualification order imposed on Barry Kenneth Cooper, two other directors, Philip Michael Stacey and Robert James Taylor Smillie, former directors of CPM Group Limited, offered disqualification undertakings, which were accepted for seven-and-a-half and six-and-a-half years, respectively. Last but not least, in the JLL and Fourfront case, chap I of the Competition Act 1998 was infringed by JLL and Fourfront, Loop, Coriolis, ThirdWay and Oakley. Following the investigation, the CMA received disqualification undertakings from Robb Simms-Davies, Trevor Hall, Oliver Hammond, Clive Lucking, Aki Stamatis and Sion Davies, who were disqualified for five years, two-and-a-half years, two years, four years and nine months, two years and nine months, and one-and-a-half years, respectively.

108 See Caliskan, S and Oner, SIndividual sanctions of competition law: Comparison between the UK and Turkey” (2020) 28/1 European Review 154CrossRefGoogle Scholar at 161; see also Caliskan, SIndividual behaviour, regulatory liability, company's exposure to risk: Deterrent effect of individual sanctions in UK competition law” (2019) 10/6 Journal of European Competition Law & Practice 386CrossRefGoogle Scholar at 389; Stephan, ADisqualification orders for directors involved in cartels” (2011) 2/6 Journal of European Competition Law 529Google Scholar at 535.

109 Of note is the Dangote Group, which has a de facto monopoly of Nigeria's cement industry and looks set to monopolize the oil refining sub-sector as well. See “Breaking down barriers: Unlocking Africa's potential through vigorous competition policy” (2016, the World Bank Group), available at: <http://documents.worldbank.org/curated/en/243171467232051787/Breaking-down-barriers-unlocking-Africas-potential-through-vigorous-competition-policy> (last accessed 30 January 2021). See also F Fawehinmi “Africa's richest man has a built-in advantage with Nigeria's government” (11 October 2017) Quartz Africa, available at: <https://qz.com/africa/1098137/africas-richest-man-has-a-built-in-advantage-with-nigerias-government/> (last accessed 30 January 2021). Although Nigeria liberalized its telecoms sector in 2001, the absence of a viable competition regime has given rise to allegations of anti-competitive practices, with some firms creating artificial barriers to entry in a bid to monopolize the market. For example, dominant firms like MTN, Glo and Airtel have been alleged to use their market powers to engage in cross-subsidization of services, while refusing to interconnect and grant other firms access to their towers. See Ubochioma, WRegulation of competition in Nigeria's liberalised telecommunications market: A case for complementing sector specific regulation with a general Competition Law Commission” (2013) 19/6 Computer and Telecommunications Law Review 184Google Scholar.

110 See Evidence Act (Nigeria), sec 135; and 1999 Constitution of the Federal Republic of Nigeria, as amended in 2011, sec 36(5).

111 The Australian Securities and Investment Commission does not require a court order to impose a competition disqualification: Competition and Consumer Act 2010, sec 286E.

112 FCCPA, secs 69(2), 69(4)(d), 90(7), 107(4), 108(3)(c), 109(3)(c), 111(2)(c), 112(c), 135(3) and 155(c).

113 Id, sec 40.

114 See JG Frynas “Problems of access to courts in Nigeria: Results of a survey of legal practitioners” (2001) 10 Social and Legal Studies 397.

115 See Werden, GJ et al. “Detection and deterrence of cartels: Using all the tools and sanctions” (2011) 56 Antitrust Bulletin 207CrossRefGoogle Scholar at 216.

116 See Beaton-Wells, C and Parker, CJustifying criminal sanctions for cartel conduct: A hard case” (2013) 1/1 Journal of Antitrust Enforcement 199CrossRefGoogle Scholar; Cronin, ZThe competitor's dilemma tailoring antitrust sanctions to white-collar priorities in the fight against cartels” (2013) 36/2 Fordham Law Review 1687Google Scholar.

117 See Werden et al “Detection and deterrence”, above at note 115 at 216.

118 See Beaton-Wells and Parker “Justifying criminal sanctions”, above at note 116 at 201.

119 RA Cass “Competition in antitrust regulation: Law beyond limits” (2010) 6 Journal of Competition Law and Economics 129.

120 See Cronin “The competitor's dilemma”, above at note 116. See also Baker, DLWhy is the United States so different from the rest of the world in imposing serious criminal sanctions on individual cartel participants?” (2013) 12 Sedona Conference Journal 300Google Scholar at 306.

121 The Federal Trade Commission Act and the Clayton Act 1914.

122 Enterprise Act, sec 188 (which was actually introduced in 2003) makes it an offence for a person to agree to enter into arrangements that would amount to price fixing or that may limit or prevent the supply of a product or service, or limit or prevent the production of a product. It also criminalizes arrangements that would amount to dividing customers among undertakings or that would amount to bid-rigging. See also R Sallybanks “The cartel offence: Has a lack of enforcement contributed to a lack of awareness” (October 2018, BCL), available at: <https://www.bcl.com/the-cartel-offence-has-a-lack-of-enforcement-contributed-to-a-lack-of-awareness/> (last accessed 30 January 2021).

123 See Florian, WP et al. “Individual sanctions for competition law infringements: Pros, cons and challenges” (2016) 2 Concurrences Review 14Google Scholar.

124 German Criminal Code, sec 298.

125 See Caliskan and Oner “Individual sanctions”, above at note 108.

126 Luis, MCompetition regulation in Ecuador” (2013) 9 Journal of Competition Law and Economics 755Google Scholar at 756.

127 See Australian Corporations Act, sec 206A for instance.

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