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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.

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