Private Enforcement of Competition

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COMPARATIVE ANALYSIS OF PRIVATE ENFORCEMENT OF COMPETITION LAW INTRODUCTION One of the most important aspects of a robust competition regime is that the persons affected by violations of competition law are adequately and timely compensated.[1] Such actions not only deter anti-competitive behaviour, but also promote consumer welfare.[2] It is common knowledge that competition law directly affects public interest given its repercussions on the market and its participants.[3] However, generally speaking, competition laws do not focus on compensation mechanism for private parties, and focus is more on punishing the violators to curb future violations.[4] It is, therefore, important that adequate provisions are included in competition laws so as to safeguard the rights of private parties. This would help achieve healthy competition and deter unscrupulous business practices that are intended to cheat the consumers so as to control markets.[5] However, with the rise in anti-competitive agreements and exclusive arrangements entered into between parties, the need to protect the rights of the affected persons assumes greater significance in the present times. This paper attempts to analyse the provisions pertaining to the right of private parties to seek compensation for losses suffered by them owing to anti-competitive behaviour.

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This paper has been divided into seven parts. Post this introduction, the paper analyses the private enforcement of competition law in the United States of America (US), the European Union (EU), Australia, Japan, China, and India. This is followed by conclusions. UNITED STATES OF AMERICA The US is the only major economy in the world where private enforcement of competition law (i.e., filing of direct claims against competition law violators by parties that have incurred losses due to such violations) is more rampant than public enforcement (i.e., penal action taken against competition law violators by the public regulatory authorities).[6] The role played by private enforcement is, therefore, one of the most important features of the US competition law enforcement.[7] Treble Damage Provision In a majority of countries, public enforcement is the preferred way to enforce competition laws. However, in the US, private parties as well as authorities acting on behalf of such private parties are entitled to claim damages from the violators.[8] In terms of the Clayton Antirust Act of 1914 (Clayton Act), recovery of damages by any person injured in his business or property by reason of anything forbidden in the antitrust laws is permitted.[9] This establishes both a private right of action and an award of treble damages (i.e., three times the actual damages).[10] In this regard, the following two key goals have been identified by the US Supreme Court with respect to awarding treble damages in a private action under the Clayton Act: (a) to punish past violations of the law;

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