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23 Nat'l L. Sch. India Rev. 9 (2011-2012)
Criminalization of Cartel Activity - A Desirable Goal for India's Competition Regime

handle is hein.journals/nlsind23 and id is 17 raw text is: CRIMINALIZATION OF CARTEL ACTIVITY - A DESIRABLE GOAL FOR INDIA'S COMPETITION REGIME? Ariel Ezrachi* and Jioi Kindl This article explores the criminalization of cartel regimes in the specific context of the Indian economy. Starting with the assumption that cartelisation is illegal and must be punished in some way, it explores the limitations of me efinancial penalties, as has been acutely felt in the European Union. On the other hand, criminal liability, which is of a uniquely personal nature (as opposed to the corporate nature ofadministratioe remedies) has enjoyed widespread success in the United States. As a deterrent, therefore, there is a strong case for criminalising cartel activity. Nevertheless, certain hurdles must be surmounted: notably, the societal attitude towards thc offince in question directly affects its implementation, as does enforcement capacity. In the specific context of Indi, keeping in mind the benefits and b urdens outlined above, the authors suggest a gradual move from administrative penalties to criminal liability, using competition advocacy to cultivate the landscapefor such a change. I. INTRODUCTIO N ....................................................................................................... 10 II. THE CASE FOR CRIMAINALIZATION ........................................................................... 11 II . C H ALLEN GES ....................................................................................................... 16 A. The Social Context: Fop Down and Bottom up Appiroaches ............... 16 B. The Substantive Context: Designing the Cartel Ooffence ........................... 20 C. The Institutional and Procedural Context: Enforcement Capacity............... 21 IV. REFLECTIONS ON CARTEL ENFORCEMENT IN 1NDL ............................................... 22 V. C ONCLUDING REMARKS ........................................................................................ 26 * Director, The University of Oxford Centre for Competition Law and Policy; Slaughter and May Lecturer in Competition Law, The University of Oxford; Fellow, Pembroke College, Oxford. Senior Associate with Weil, Gotshal & Manges (Prague); Lecturer in Competition Law, Faculty of Law, Charles University in Prague.