The treatment of leniency materials in competition litigation proceedings: A review across the jurisdictions

Abstract

This thesis aims to investigate the interaction between competition authorities’ leniency programmes and private damages actions following on from public enforcement proceedings against cartels. A comparative review will be provided across a number of key jurisdictions. These jurisdictions are the European Union, the United States of America, Australia, as well as, where appropriate, New Zealand. The intention is to take stock of the jurisdictions which have already had some experience with the subject-matter. Further, to provide valuable insights for policy-makers in smaller jurisdictions, such as New Zealand, as to how to positively influence the interrelationship between leniency and private damages actions going forward. It is necessary, particularly in those jurisdictions where collective redress mechanisms have not yet been introduced or are only just developing, to examine the coordination between public and private proceedings more carefully. In particular, it is important to analyse the role played by leniency as a public policy tool, being at the interface between the two. The thesis has three main parts to it. In the first instance, it sets out the relevant disclosure processes applicable to private claimants seeking to obtain access to leniency materials in competition litigation proceedings. The aim is to bring out the relevant advantages and disadvantages inherent in the various national disclosure approaches towards this type of material. The thesis then explains why leniency applicants are particularly exposed to private damages actions. It analyses the possible options of enhancing leniency incentives in a cartel enforcement environment which is gradually witnessing a rise in private damages actions. Finally, it sets the disclosure challenges facing today’s leniency applicants in an international context. The thesis argues that any national legislative measure solely aimed at limiting disclosure of leniency materials in court proceedings is unlikely to provide a complete solution in today’s increasingly global enforcement environment. What is required is a more holistic approach, which focuses on the leniency applicant’s incentives, and how these impact on private damages actions. Any solutions need to increasingly be designed to fit an international system. A more global approach towards leniency incentives is advocated.