ICC shines light on proliferation and fragmentation of private antitrust enforcement regimes

A new ICC publication shines a spotlight on the increasingly fragmented nature of national regimes designed to allow citizens and companies to claim compensation if they are the victims of alleged antitrust abuses.

Once a phenomenon limited to the United States, the past decade has seen a proliferation in new rules across more than 40 jurisdictions to allow private actions to enforce competition law – spurred, in part, by the European Union Damages Directive in 2014. The new analysis – developed through an extensive survey of ICC’s global network – emphasises how this growing patchwork of rules creates severe difficulties for firms in understanding and navigating legal risks when operating in multiple markets.

The ICC Compendium of Antitrust Damages Actions – which contains an unprecedented cross-jurisdiction review of landmark cases across economic sectors and industries – aims to help business understand the heightened risks they face of being sued for damages in light of the growth of this novel area of antitrust law.

In doing so, the ICC Compendium calls on companies to implement effective compliance procedures to mitigate potential antitrust risks – while also pointing to the need for greater harmonisation of national legal systems to avoid creating undue barriers to cross-border trade and investment flows.

ICC Secretary General John W.H. Denton AO said: “All businesses, regardless of their sizes or sectors, need to understand the risks they face in operating internationally. We hope the Compendium will enable companies to better understand potential antitrust risks in their international operations – reducing the risk of legal uncertainty placing a chilling effect on the investments and cross-border trade that will be vital in driving a resilient recovery from the Covid-19 crisis.”

Mr Denton added: “The growing fragmentation of national approaches to private competition enforcement highlighted by the report should be a wakeup call to governments as regards the need for greater alignment of national regimes – both to ensure effective redress for anti-competitive behaviour and to avoid creating undue barriers to welfare-enhancing commercial activities.”

The ICC Compendium does not seek to explore the complexities of each legal system but, rather, identifies nine key issues – serving as an easy access reference point, illustrated by relevant case-law and decisions across a spread of geographies.

François Brunet, Chair of the ICC Task Force on Antitrust Damages Actions said: “The Compendium provides a much needed overview of key decisions in this novel – and often uncertain – area of antitrust law. Our extensive survey of national decisions should enable greater understanding of how courts have dealt with certain issues – which, we hope, will help drive greater harmonization of national enforcement. The study should also provide competition authorities a broader understanding of the consequences of their approaches based on learning from other jurisdictions.”

The new report was published following over a year of work by members of ICC’s Commission on Competition – comprising leading antitrust experts from business and private practice in over 100 jurisdictions.

Download the ICC Compendium of Antitrust Damages Actions.

The Compendium is sponsored by Hogan Lovells, Osborne Clarke, Raposo, Sá Miranda & Associados (PRA) , Serra Lopes, Cortes Martins & Associados (SLCM) , and Zhong Lun Law Firm.

To find out more about the work of the ICC Competition Commission please contact Caroline Inthavisay.