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Lookup NU author(s): Professor Jonathan Galloway
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).
Traditional deterrence theory relies on a combination of probability and severity of punishment to impose a perception of sufficiently high costs to deter wrongdoing. Yet when a very high severity of punishment counters a low probability, disproportionate outcomes give rise to societal concerns about procedural fairness and justice, such that the law loses legitimacy. Any loss of legitimacy undermines would-be offenders normative commitment to, and voluntary compliance with, the law. The UK has encountered significant obstacles in efforts to enhance the deterrence of competition law. The Enterprise Act 2002 and the Enterprise and Regulatory Reform Act 2013 introduced individual sanctions, consisting of a criminal cartel offence and director disqualification orders, to deter anti-competitive behaviour. This article argues that poor drafting and prosecutorial failure are responsible for the failure to earn and secure the legitimacy of the cartel offence. Yet the greatest regulatory failure is not making fuller use of the disqualification powers, which have greater legitimacy. By following the approach suggested in this article the deterrent value and legitimacy of UK competition law would increase, and we would be closer to achieving the goals of the individual sanctions when they were introduced over 13 years ago.
Author(s): Galloway J
Publication type: Article
Publication status: Published
Journal: World Competition
Year: 2017
Volume: 40
Issue: 1
Pages: 121-158
Print publication date: 01/02/2017
Acceptance date: 02/12/2016
Date deposited: 06/12/2016
ISSN (print): 1011-4548
ISSN (electronic): 1875-8436
Publisher: Kluwer Law International
URL: http://www.kluwerlawonline.com/toc.php?pubcode=WOCO
