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Highlights
COMPETITION LAW REGIMES
Criminal Complications in Cross-border Cartel
Investigations: Implications of Different Legal
Regimes
Donald H. Jack, Brian N. Radnoff *
With global economic integration, a
growing number of corporations are subject to multiple legal regimes with
disparate approaches to the right against self-incrimination. Donald Jack and
Brian Radnoff explain the differences among the Canadian, American and European
Community competition law regimes and their approaches to this important right.
Because competition authorities may share information internationally under
various treaties, it cannot be assumed that information given to Canadian
authorities, for example, will only be used in this jurisdiction, and only in
accordance with Canadian constitutional principles. In fact, it has recently
been held that the Competition Bureau can provide information to a foreign
authority despite otherwise being required by the Competition Act to keep
the information confidential.
PROHIBITION ORDERS
Prohibition Orders and the Competition Bureau's
Immunity Program
Andrew J. Roman, Erik Marshall (Student-at Law)
Andrew Roman and Erik Marshall
examine an ongoing inconsistency between the Canadian and American
immunity/leniency practices as it relates to the use, in Canada, of prohibition orders,
particularly with leniency applicants who
have pled guilty but received lenient penalties because of cooperation. In Canada, the Competition Bureau requires
a person pleading guilty to a conviction under a leniency plea bargain to
consent to a prohibition order, which has the effect of prohibiting the
repetition of the offence for a period of 10 years. In the United States, the
Department of Justice has not imposed prohibition orders for 20 years. The
authors take the position that the practice of the U.S. Department of Justice is
the better one.
REFUSAL TO DEAL
The Law of Refusal to Deal: Distributors as Lifetime
Partners?
James Musgrove, Janine MacNeil
Since 1976, Canada has had a
"refusal to deal" law that allows the Competition Tribunal to order firms to
take on or prevent them from cutting off distributors of their
products in certain circumstances. Unlike virtually all of the other reviewable vertical practices
under Canada's Competition Act,section 75 of the Act did not have an
expressed competitive effects test. Initially, only the Commissioner of
Competition could initiate a refusal to deal case. In 2002, the law changed
significantly allowing those directly and substantially affected by the conduct
the right to bring cases in their own name. At the same time, the law was
amended to include the requirement that the conduct have or is likely to have an
adverse effect on competition in a market. James Musgrove and Janine MacNeil
examine the effects of these changes.
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Board
C.J. Michael Flavell, QC
Editor-in-Chief
Lang Michener LLP
Peter R. Hayden, QC
Lang Michener LLP
H. Martin Kay, QC
Bennett Jones LLP
Yasir A. Naqvi
Centre for Trade Policy and Law
Martha A. Healey
Ogilvy Renault LLP
Martin Masse
Lang Michener LLP
Andrew J. Roman
Miller Thomson LLP
J. William F. Rowley, QC
McMillan Binch Mendelshon |