ENHANCING COURTS’ ROLES IN COMPETITION ENFORCEMENT: A PRESCRIPTION FOR THE JURISDICTIONS OUTSIDE OF THE UNITED STATES

Abstract

In promoting courts’ roles in competition enforcement, the institutional characteristics of courts could be identified as one of the cause of difficulties: they are not well equipped for competition analysis. However, we need to look more deeply into the cultural factors that affect the role of courts in competition enforcement. While the US courts have played a leading role in competition enforcement from the outset, the jurisdictions outside of the US have mainly depended on public enforcement. The legal culture of the US, which is more open to non-legal values, and the American culture, which is anti-state, legalistic and rights-oriented, could provide a partial explanation of the difference. In jurisdictions outside of the US, courts might have more difficulties in introducing economic analysis. Further, they might not regard the promotion of private enforcement highly desirable. In such a cultural context, private enforcement needs to go hand in hand with public enforcement. Thus, in the short term, follow-on actions will be a more effective way to promote private enforcement, and competition authorities need to help courts in competition analysis. However, in the long term, public awareness of the importance of private enforcement needs to be increased to gather momentum for its promotion. And training of judges and the establishment of specialized courts/panels need to be considered.