The International Handbook on Private Enforcement of Competition Law
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The International Handbook on Private Enforcement of Competition Law

Edited by Albert A. Foer and Jonathan W. Cuneo

With the international community on the brink of an explosion of private remedies for violation of national competition laws, this timely Handbook provides state-of-the-art analysis of the private enforcement of competition laws across the globe. Private enforcement of antitrust is becoming a significant component of competition policy laws worldwide; today, more than a hundred jurisdictions have adopted market regimes operating within a framework of competition law, providing a varied base for developing ways by which persons injured by anticompetitive conduct will (or will not) be able to obtain remedies.
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Chapter 38: Toward an Effective System of Private Enforcement

Albert A. Foer and Jonathan W. Cuneo


Albert A. Foer and Jonathan W. Cuneo1 Preliminary considerations In this final chapter, we attempt to pull together a variety of observations, ruminations, and recommendations that derive from our immersion in the chapters that constitute this Handbook. Of rights and remedies States that have adopted competition laws have created what is increasingly seen as a right to participate in a competitive, market-based economy. When that right is diminished by the illegal anticompetitive behavior of one or more persons, the victims include specific individuals or businesses as well as the diffuse general public. The latter’s interest is represented by the government’s competition authority. However, once a regime has determined that its economy will be framed by a competition law, there should be strong expectations not only that anticompetitive behavior will be stopped by the government, but that private victims will have a right to compensation for injury caused by illegal anticompetitive behavior. The question is how these expectations may best be met. Government should not do it all Why not rely completely on the government, i.e., more specifically, on the national competition authority, to provide compensation to injured victims? Currently, the authority for providing a damages remedy has been given to a few governments in various forms, but such authority has rarely been exercised. The US Federal Trade Commission (‘FTC’), for example, has twice exercised authority to seek a ‘disgorgement’ remedy through which it can distribute funds to persons injured by unfair methods of competition. The FTC reviewed its limited experience...

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