Few issues engender as much debate in antitrust circles as the concern of overlapping punishment of cartel offenders in international cartel cases. The mass proliferation of antitrust enforcement, rising criminal and civil penalties and the seemingly boundless extraterritorial reach of national antitrust laws challenge traditional notions of proportional punishment and adequate deterrence in international cartel cases.
Authorities and outside counsel alike increasingly struggle to answer the question ‘how much is too much?’ when it comes to both the number of times a corporation or individual must stand to answer for the same conspiracy and, once prosecuted, the number and magnitude of the penalties that are necessary to remedy the offence.
The experience of defendants in the recent Air Cargo cartel cases is illustrative of this debate. In what was alleged to be a single, overarching conspiracy to fix the price of surcharges on air cargo services, the antitrust authorities of at least 10 different jurisdictions undertook enforcement actions: the US, the European Union, Australia, Brazil, Canada, Mexico, New Zealand, South Africa, South Korea and Switzerland. The fines imposed by this multitude of authorities added up to as much as nearly $1bn for a single defendant…
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