1 / 11

Navigating the Roadblocks on the Leniency Highway Multijurisdictional Implications

Navigating the Roadblocks on the Leniency Highway Multijurisdictional Implications. Julian Joshua Howrey Simon Arnold & White LLP College of Europe Global Competition Law Centre Brussels, 15 March 2005. Multijurisdictional issues. Transatlantic (international) Coordination

wattan
Download Presentation

Navigating the Roadblocks on the Leniency Highway Multijurisdictional Implications

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Navigating the Roadblocks on the Leniency Highway Multijurisdictional Implications Julian Joshua Howrey Simon Arnold & White LLP College of Europe Global Competition Law Centre Brussels, 15 March 2005

  2. Multijurisdictional issues • Transatlantic (international) Coordination • Impact of US discovery on EC Leniency • Getting (and losing!) immunity

  3. Transatlantic Coordination (1) • Globalisation = global cartels = global exposure • Criminal / administrative / civil exposure • Leniency as an enforcement tool • 18 jurisdictions have a leniency policy

  4. Transatlantic Coordination (2) EU European Commission (administrative procedure) US DOJ criminal enforcement Civil courts (federal – state) Treble damages – class actions Waivers Coordination of dawn raids “Pick up the phone” cooperation No secrecy for the “also rans” ALSO National Courts Civil & Criminal (e.g UK) Discovery orders

  5. Transatlantic Coordination (3) • Basic Common Characteristics… BUT • Different Enforcement Procedures • Different Dynamic of Leniency programme • Different incentives

  6. Impact of US discovery on EC leniency (1)US discovery • Fed R Civ P Rule 26: • “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter in the pending action…” • Not confined to material that is “admissible” as evidence at trial: includes information that “appears reasonably calculated to lead to discovery of admissible evidence” • Wide judicial discretion (Methionine v Vitamins)

  7. Impact of US discovery on EC leniency (2)Paperless leniency • Applications to DOJ tailored to minimise civil discovery • US lawyers advocate “paperless leniency” in EC • Widespread use of oral procedure by Commission • EC-US convergence? “Proffer” v “evidence” • Nasty surprises in store: “transcript” sent with SO • “Admissions” discoverable in US at critical phase

  8. Impact of US discovery on EC leniency (3)Shifting the Goalposts • US lawyers urge reform • New notice on “Access to file”: Point 12 • Unsigned minutes are internal document, therefore not evidence, not disclosable and SO not discoverable • Implications: • Uncertainty for applicants • Due process / rights of defence

  9. Getting (and losing!) immunity (1) • Similar conditions under both programmes: • Make available all evidence / report with “candor and completeness” • Obligation of full and continuing cooperation • Ending of involvement / prompt and effective action • Not a coercer ( US: leader or instigator) • Procedural aspects: staying on track

  10. Getting and losing immunity (2) Stolt-Nielsen v. United States (ED, Pa, 14 January 2005): • Can DoJ revoke immunity unilaterally? • Did Stolt-Nielsen breach the agreement?

  11. Practical Lessons • Appoint international Coordinating Counsel • Implement a global strategy • Be aware of the different enforcement schemes • Watch out for discovery issues • Establish global procedures to protect and maximize attorney-client privilege

More Related