independent review of Australian competition policy | My Assignment Tutor

PRIVATE ENFORCEMENT OF COMPETITION LAW IN AUSTRALIA — INCHING FORWARDS?CARON BEATON-WELLS*The recently concluded independent review of Australian competition policy, law and institutions led by Professor Ian Harper examined proposals in relation to private enforcement of the competition rules. That private actions for damages were even on the review agenda is a positive development in an area that has long escaped the attention of policymakers and enforcement leaders in this country. However, the Harper recommen-dations for private enforcement-related reforms are sparse and, in general terms, the Harper Panel’s treatment of the topic fails to grapple with many of the major challenges facing private litigants — especially small businesses and consumers. This article is a critical analysis of the Harper Panel’s consideration of private competition law enforce-ment. It explains the significant impediments hampering private litigation in this field, critically analyses the Harper Panel’s examination of the issues, and compares the approaches that have been taken in overseas jurisdictions — Europe particularly. It concludes that in the absence of a more concerted effort to confront and overcome the obstacles, the potential of private enforcement to compensate for past harm and deter future harm from anti-competitive conduct is likely to remain largely untapped.CONTENTSI Introduction 682 II Limitation Periods 692 III Jurisdiction and Extraterritoriality 697 IV Proof and Allocation of Liability 701 A Reliance on Findings in Prior Public Enforcement Proceedings 701 B Access to Information 709 C Joint and Several Liability and Contribution Rules 714 BA, LLB (Hons), LLM, PhD (Melb); Professor, Melbourne Law School, The University of Melbourne. Parts of this article are modified versions of parts of Caron Beaton-Wells, Brooke Dellavedova and Lee Taylor, ‘Private Antitrust Enforcement in Australia — Untapped Poten-tial’ in Mel Marquis and Giorgio Monti (eds), Shaping Private Antitrust Enforcement in Eu-rope (Hart Publishing, forthcoming). The author is grateful to Tim Kyriakou for research and editing assistance. The usual disclaimer applies.681


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