The chapter reports that the leniency programme in Hong Kong was promulgated at the same time that the Hong Kong Competition Ordinance went into full effect in 2015. This leniency programme has been successfully used once. The Hong Kong Competition Commission (HKCC) reached a leniency agreement in 2020, despite the strong focus of the HKCC on tackling cartels. Six out of the seven cases the HKCC has brought to the Hong Kong Competition Tribunal are cartel related. These enforcement successes are attributable to market studies of the HKCC itself. However, this situation should not be misinterpreted. With the arrival of Brent Snyder as the Chief Executive Officer of the HKCC, the leniency programme was revised. Lenient treatment remained limited to immunity, but also became available once an investigation has started. Two new schemes were introduced: leniency for individuals and leniency plus. A leniency applicant has also been given immunity from damages claims. Further, reduction was made possible through the introduction of a cooperation policy. These recent changes should contribute to enforcement and supplement the successfully concluded ex officio investigations.

This chapter on India suggests that the Indian Competition Act of 2002 already had the possibility to offer lenient treatment to a firm that reports the existence of a cartel. However, the details for offering lenient treatment were only elaborated for the first time in 2009, in the Lesser Penalty Regulation. A revision followed in 2017. This resulted in a mere thirteen decisions of the Competition Commission of India (CCI) supported by the leniency programme. This low number may be explained by the discretion the CCI has to judge leniency applications and the uncertainty leniency applicants face in relation to damages claims. The chapter recommends addressing these issues, but also increasing the incentives to apply for leniency by introducing individualised sanctions to directors or immunising successful leniency applicants from debarment from procurement projects. Another recommendation is to avoid creating other pitfalls when the Competition Act is being amended.

The chapter assesses the Taiwanese leniency programme. Taiwan incorporated a leniency programme into the Taiwan Fair Trade Act in 2011. Since it became operational in 2012, the leniency programme has been used fifteen times. Out of these fifteen leniency applications, three applications have led to a decision. Noticing that financial rewards are not really assisting the leniency applications, the chapter investigates whether the low number of decisions could be attributed to the design of the leniency programme. This is done based upon the checklist of effective leniency programmes created by the International Competition Network. The main conclusion drawn is that the leniency programme may only be moderately effective. The chapter further argues that lawyers have identified the following elements as exacerbating the bad conceptualisation of the leniency programme: uncertainty about the calculation of the fines, access to the leniency dossier by third parties, and uncertainty on how the Taiwan Fair Trade Commission deals with cartel cases in general. Another concern that the chapter ascertains is the lack of awareness in Taiwan about the disputable character of cartels.

Malaysia’s competition law came into force in January 2012. Detailed guidelines on the leniency programme were published in October 2014. Despite the leniency programme being designed based on best practices found in more mature competition regimes and the International Competition Network, the leniency programme has been underutilised in the cartel cases investigated in Malaysia. The underutilisation of the leniency programme could be due to the enforcement agency having too many discretionary powers. Another reason could be the lack of immunisation from civil proceedings. De facto government oversight and spillovers from deterioration in the country’s state of governance in the past could also have affected the public’s perception of quasi-independent commissions. This is reflected in the perceptions of the business community of courts and corruption in the country.

This chapter highlights that the Japan Fair Trade Commission was not able to introduce a leniency programme because of Sadanori Yamanaka, the leading politician within the Liberal Democratic Party for competition law reform; that a leniency programme is essentially different from plea bargaining; and that a leniency programme does not necessarily detract from the rigid characteristic of the surcharge, the financial remedy applicable to infringements of the Antimonopoly Act. The chapter further indicates that, when Yamanaka passed away, the opposition to a leniency programme disappeared, partly because the JFTC was able to show the legislator the substantial difference between a leniency programme and plea bargaining and the possibility of introducing a leniency programme without it claiming any discretion. The leniency programme without discretion has led to useless leniency applications, not enabling the JFTC to pursue an investigation or obliging the JFTC to grant lenient treatment without getting full information. As the JFTC considered the latter problem, the leniency programme was amended in 2019.

The authors of this chapter argue that the Chinese legislator has infused a dose of trust and predictability into its leniency programme. The trust was necessary because not all enforcement agencies in China, of which the National Development and Reform Commission is most often singled out, applied due process during their investigation. Furthermore, predictability was required because the existing leniency programmes, one for price-related cartels and one for non-price-related cartels, gave too much discretion to the enforcement agencies. As a result of the lack of due process or predictability, the outcomes of investigations were uncertain. This chapter will show that, by reconfiguring the enforcement structure, both elements are addressed. There is one condition for the new leniency programme to be more effective. The new enforcement agency, the State Administration for Market Regulation, which has elaborated the new leniency programme, should ensure transparency in its decision making.

A promising solution is to handle the problem of contribution in a contractual way. Antitrust infringers could conclude an agreement which would determine the amount of their relative liabilities regarding antitrust infringement. The freedom to determine relative shares of liability may yet be viewed reluctantly from a public policy perspective. It is claimed that liability sharing agreements constitute anticompetitive arrangements, they stabilize cartels, weaken the enforcement of competition law and have a negative impact on settlements. This Chapter reveals that these statements are mostly incorrect, being applicable to US antitrust law rather than EU one. The Chapter makes a positive case for liability sharing agreements. It demonstrates that liability sharing agreements are allowed by EU law and can be concluded within certain limitations dictated by compliance with the Commission’s fining decisions and public policy rules.

This chapter sheds light on the international organisations that have been active in proliferating leniency programmes. This contribution includes the efforts of the OECD, ICN, UNCTAD and ASEAN. For each of these organisations, the chapter argues that they have a tendency to look for the common elements among existing leniency programmes and present them as an international guideline or best practice. When the existing leniency programmes diverge, the international guideline or best practice is to offer options. By not further clarifying these options, the chapter holds, the international organisations do no more than summarise local practices and pull them outside of their context. Due to this practice, convergence is unlikely to happen because, when the international guidelines or best practices are consulted, there will be an automatic reflex to also consult existing local practices and the existing literature regarding those practices.

Claiming contribution in courts is currently a complex and uncertain task, which may lead to the unenforceability of the right to claim contribution in antitrust. The Chapter makes several recommendations that could simplify and make contribution more effective in the competition law context. Firstly, it must be clearly stated that antitrust infringers have the right to claim contribution in the context of EU competition law and that such a right does not interfere with the principle of effectiveness thereof. Secondly, rules on contribution should be the same for private and public antitrust enforcement, they should be based on one type of claim in the form of a personal right to claim contribution, available when the damages and Commission’s fine are paid. The criterion for determining internal liability should be based on a limited number of factors. A two-pillar rule based on division according to market shares and relative fault is suggested. Finally the regimes of special joint and several liability should be simplified and liability sharing agreements should be endorsed. Liability sharing agreements are the simplest and the most effective tool for securing the right to contribution.

This chapter investigates the 2019 amendment of the Japanese leniency programme. The authors’ approach starts by observing that the old leniency programme may have substantially contributed neither to detecting nor to deterring cartels. The question, therefore, is whether the new leniency programme, whereby the amount of reduction of the leniency programme is drastically lowered for subsequent applicants but which can be compensated by entering a consultation process with the JFTC regarding the information to be submitted, is able to address the limitations of the old leniency programme. The chapter concludes that this may not be the case, since the changes to the leniency programme only address the potential of subsequent leniency applications. Nothing is done to attract better leniency applications from the start. To increase deterrence, the authors therefore investigate whether there is still some possibility of tweaking the sanctions in order to compensate for what the leniency programme cannot yet achieve.

Directive 2014/104/EU introduced special rules on joint and several for those engaged in consensual dispute resolution, immunity recipients and small and medium enterprises. The aim of this Chapter is to outline the liability regime for these entities. The assessment starts with the analysis of policy arguments and the search for the logic behind the special rules on joint and several liability. It is asked whether the special treatment of privileged groups is justified and whether the rules provided by Directive 2014/104/EU meet the envisioned aims. Subsequently, the assessment takes a pragmatic angle and it is asked how the special regimes of joint and several liability operate in practice and how they can be improved. The analysis shows that Directive 2014/104/EU insufficiently shields immunity recipients from an extensive private law liability and the rules on joint and several liability call the effectiveness of leniency programmes into question. The Directive’s rules on consensual dispute resolution are also flawed. Given that there is no clear legal benchmark for dividing antitrust liability, the settling parties are virtually unable to determine which settlement offer to make and they can end up overcompensating or being undercompensated.

This chapter is an introduction to the book. The chapter therefore starts with introducing the practical necessity for a leniency programme and the first use of a leniency programme in the United States. After this, the focus shifts to Asia. The chapter indicates that competition law in Asia is a relatively recent phenomenon, which, in turn, has had an impact on the implementation of the leniency programme in Asia. Since the Asian countries, more specifically China, Hong Kong, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand and the Philippines, saw the success of the leniency programme in other jurisdictions, their embrace of the leniency programme was not only fast but also recent. This means that these leniency programmes have not yet been researched against the existing theoretical literature.

The concluding chapter argues that the Asian leniency programmes only converge on the core elements of a leniency programme. The core elements are the building blocks of a leniency programme. However, the composition of these blocks is often different. Some of the differences are subtle. Other differences make the respective leniency programme distinct from the others. Some of the distinctive elements are not necessarily part of the building blocks any more and thus give a unique character to the respective leniency programme. This chapter further claims that these differences can be explained by either the political economy of a country, experimentation due to prior negative enforcement results and a desire to achieve better enforcement results, or foreign influence. Since the result of experimentation cannot always be predicted, the authors estimate that further amendments will be made to the Asian leniency programmes.

This chapter situates the emergence of leniency programmes in competition law in the broader context of contemporary trends in business regulation. It is suggested that although leniency programmes are a distinctive form of regulatory intervention, they do exhibit a family resemblance with other regulatory mechanisms that have emerged in the last two decades in other fields of business regulation, and that similar trends, pressures and effects can be seen across different regulatory contexts. The four trends highlighted are a shift towards some form of negotiated justice, a new emphasis on regulatory experimentation, the creation of new forms of transnational legal risk, and the emerging importance of regulatory networks. The intention of this chapter is not to blur the distinction between these different developments, but rather to suggest that by locating leniency in the context of these broader trends, we can deepen our understanding of the significance of these developments.

This chapter introduces one of the more recent leniency programmes in Asia. Due to the dual enforcement structure, the Philippines has developed two different leniency programmes, one administered by the Philippine Competition Commission and one by the Office for Competition of the Department of Justice (DOJ-OFC). Whereas the latter is only applicable in criminal proceedings, the former applies to administrative, criminal and civil proceedings. The chapter argues that both leniency programmes are generous. However, discretionary powers of the enforcement agencies and the possibility of carving employees out of the leniency application diminish the attractiveness of leniency programmes. Uncertainty about the outcome of a leniency application has, in general, not been well accepted by cartel participants. It can therefore be predicted that, no matter how generous the leniency programmes are, there will be no race to the enforcement agencies’ doors.

The chapter describes how the legislator discussed whether to incorporate a leniency programme in the Trade Competition Act of 2017 (2017 Act). It is argued that there was an initial desire to introduce a leniency programme. The leniency programme would be applied to the criminal sanctions that the bill prescribed for hard-core cartels, such as those involved in price fixing or bid rigging. However, the Office of the Attorney General objected with reasons that giving immunity from a sanction is the constitutional prerogative of the court. In order not to jeopardise the creation of a leniency programme, the drafting committee was willing to limit the lenient treatment to just a reduction in the sanction or to the cartels for which only an administrative sanction would apply. But these initiatives were not incorporated into the 2017 Act. Instead, the 2017 Act gave tremendous flexibility to the enforcement agency by only prescribing maximum sanctions. This might allow a similar result to a leniency programme to be achieved, albeit without a well-defined formal framework.

This chapter argues that the adoption of the leniency programme in Korea is proof of considering any kind of price-fixing agreements as the supreme evil in society. Since its adoption, the leniency programme has contributed to nearly 55 per cent of all detected cartels. The leniency programme is attractive in its conceptualisation, because of high rewards for a limited number of firms and its conditions that are transparent and predictable. Furthermore, the chapter argues that private actions and criminal sanctions are not necessarily detrimental to a leniency application in Korea. Both are very rare and, in the case of criminal sanctions, there is a court judgment that leniency applicants should be excluded from the indictment. To further improve the leniency programme, the chapter suggests weakening the ineligibility of recidivists to apply for leniency and introducing penalty plus, whereby the sanction increases if a firm refrains from disclosing participation in another cartel, and an omnibus question, whereby a leniency applicant is asked to report information on other forbidden practices it is aware of.

In Spain, sanctions can be of three types: (1) administrative, (2) civil or (3) criminal. The first two are the most important while the third is residual and scarce, although there has been a long-running debate, especially in the academic sphere, about the convenience of greater criminalization. (1) Competition authorities can impose administrative sanctions, mainly fines, on infringers, both on companies and their directors. Exclusion of public tenders can also be imposed on entities that have been sanctioned (final sanction) for anticompetitive behaviour. (2) Commercial courts can award compensation to victims for antitust damages. These awards are always compensatory and not punitive, so they cannot exceed the damage caused. (3) Although there is no specific cartel offence, some anticompetitive conduct can also fall into some criminal types. Although the Spanish Criminal Code has since 1848 had provisions intended to penalise individuals who carry out conduct aiming at altering or manipulating prices, recourse to criminal proceedings for the sanction of these behaviours has been highly exceptional. The current trend is towards intensifying administrative and civil sanctions (higher corporate fines, more frequent and harsher fines for directors and exclusions of public tenders, while enhancing award of damages).

The authors analyze corporate governance and competition sanctions. Despite their extensive powers, shareholders cannot (legally) interfere directly in the management of a company. It is hard to imagine that any competition law infringements attributed to the company could happen without the knowledge, or even more the active participation, of its directors or other executives. Consequently, if a competition law fine or other sanction is applied on the company, directors appear to be particularly well placed to be sued for compensation for this harm caused in their management activity. On the other hand, shareholders are the main beneficiaries of successfully completed cartels, i.e. those which remain undetected by competition authorities. The chapter investigates whether the financial burden of infringement sanctions should be borne by the company as the main potential beneficiary of excess profits, or should be fully, or at least partially, transferred to the directors who effectively committed or overlooked the breaches. Clarifications are gained from the study of managerial liability in the context of competition law infringements, followed by a deeper analysis of the consequences of the damages suffered by the company in the form of competition law fines or compensations paid as a result of private enforcement

Breaches of competition law may incur severe sanctions in Austria. Besides heavy administrative fines and nullity of contracts contravening competition law, antitrust infringers must expect private damage action claims from customers or suppliers harmed by antitrust violation. However, only very few final decisions have been rendered in Austria’s private antitrust litigation so far. Under Austrian criminal law, cartel collusion in tendering procedures may qualify as fraud or bid-rigging. Criminal convictions may in turn lead to the withdrawal of trade licences and pose a risk for the company of being 'blacklisted' – at least temporarily – in public procurement procedures. Under exceptional circumstances, dissolution of the company may be ordered if a director has committed an offence in the course of the company’s business activities; the latter possibility only applies to limited liability companies. Under Austrian company law, a director is liable to reimburse all damages caused by not applying the standard care diligence of a prudent business manager, including the compensation of damages incurred through infringements of competition law. This liability exists towards both the company and business partners.