Foer, Albert A.; Cuneo, Jonathan W. --- "Toward an Effective System of Private Enforcement" [2010] ELECD 778; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 38

Section Title: Toward an Effective System of Private Enforcement

Author(s): Foer, Albert A.; Cuneo, Jonathan W.

Number of pages: 23

Extract:

38 Toward an effective system of private enforcement
Albert A. Foer and Jonathan W. Cuneo1


Preliminary considerations
In this final chapter, we attempt to pull together a variety of observations, ruminations,
and recommendations that derive from our immersion in the chapters that constitute this
Handbook.

Of rights and remedies
States that have adopted competition laws have created what is increasingly seen as
a right to participate in a competitive, market-based economy. When that right is
diminished by the illegal anticompetitive behavior of one or more persons, the victims
include specific individuals or businesses as well as the diffuse general public. The lat-
ter's interest is represented by the government's competition authority. However, once
a regime has determined that its economy will be framed by a competition law, there
should be strong expectations not only that anticompetitive behavior will be stopped
by the government, but that private victims will have a right to compensation for injury
caused by illegal anticompetitive behavior. The question is how these expectations may
best be met.

Government should not do it all
Why not rely completely on the government, i.e., more specifically, on the national com-
petition authority, to provide compensation to injured victims? Currently, the author-
ity for providing a damages remedy has been given to a few governments in various
forms, but such authority has rarely been exercised. The US Federal Trade Commission
(`FTC'), for example, has twice exercised authority to seek a `disgorgement' remedy
through which it can distribute ...