Ian S. Forrester

Bio: Ian S. Forrester is an academic researcher. The author has contributed to research in topics: Competition (economics). The author has an hindex of 2, co-authored 2 publications receiving 64 citations.

Due process in EC competition cases: A distinguished institution with flawed procedures

Abstract: This article contends that the European Commission’s procedures for enforcing competition law are inadequate and do not match the importance and prestige of the institution as a world leader in antitrust enforcement. The topic is especially urgent due to the heavy consequences of being found to have infringed competition rules, the punitive and adjudicatory nature of the process, and the increasingly important case-law of the European Court of Human Rights. The article identifies three weaknesses in the current system: the adoption of a decision finding guilt by 27 political appointees who have not heard or studied the evidence; the lack of any hearing before a decision-maker; and the fact that the same case team in the Commission handles both the investigation of the case and the reaching of a decision. An institution as talented and prestigious as the Commission does not deserve such unique, and uniquely unsatisfactory, procedures. This article suggests some palliatives which would not necessarily involve Treaty change but which would endow Europe’s premier competition authorities with better processes. It is proposed that the determination of the facts be made by a qualified person or trio of persons who would hear both prosecution and defence on equal terms, would reach a conclusion on the factual and legal soundness of the accusations, and would then pass to the College of Commissioners a draft decision for endorsement or rejection. The author submits that the Commission ought to act before it is faced with a negative finding by a competent court about its current practices.

A Challenge for Europe's Judges: The Review of Fines in Competition Cases

Abstract: When considering appeals against fines in competition cases, the EU Courts generally rely on whether the European Commission respected its own guidelines. Formerly, by contrast, the Courts considered fully the merits and proportionality of the penalty. Commission enforcement against competition law infringements exhibits the characteristics of serious criminal procedures. The imposition of severe fines other than by an independent and impartial tribunal is a breach of the Charter and the Convention. Alternatively and in any event, penalties for offences falling into the category of “soft” breaches of legal norms without “coloration pénale” require full review of facts and law on appeal. That review should no longer be a control of legality but a full merits appeal (“was it just and proportionate to the gravity of the offence?”). A limited judicial check on compliance with administrative guidelines and policies does not reach the requisite level of intensity. In either event, reassessment in light of the Lisbon Treaty is necessary.

Competition policy and state-owned enterprises in contemporary China

Abstract: This thesis explores, first, the evolvement and implementation of competition policy in China, where a competition culture was largely missing for decades; and second, the extent to which the government has resolved the inherent contradiction between preserving state control and promoting competition. The main aim is to evaluate how a competition law, which is essentially a product of capitalist free market economy, is being applied in China, a socialist country where predominant stateowned enterprises (SOEs) together with their owner – the Chinese government – generate the most distortions to market competition. To achieve this aim, the thesis studies, first, the ongoing economic transition and the historical development of Chinese competition policy; second, the prolonged drafting process of the AntiMonopoly Law (AML); third, the substantive and institutional aspects of the enforcement of the AML, and the outstanding problems of the current competition system; and fourth, the role of the government in the interplay between competition

Competition Law and Economic Regulation: Making and Managing Markets

Abstract: Niamh Dunne undertakes a systematic exploration of the relationship between competition law and economic regulation as legal mechanisms of market control. Beginning from a theoretical assessment of these legal instruments as discrete mechanisms, the author goes on to address numerous facets of the substantive interrelationship between competition law and economic regulation. She considers, amongst other aspects, the concept of regulatory competition law; deregulation, liberalisation and 'regulation for competition'; the concurrent application of competition law in regulated markets; and relevant institutional aspects including market study procedures, the distribution of enforcement powers between competition agencies and sector regulators, and certain legal powers that demonstrate a 'hybridised' quality lying between competition law and economic regulation. Throughout her assessment, Dunne identifies and explores recurrent considerations that inform and shape the optimal relationship between these legal mechanisms within any jurisdiction.

Courts without Borders: Law, Politics, and US Extraterritoriality

Abstract: Courts without Borders is the first book to examine the politics of judicial extraterritoriality, with a focus on the world's chief practitioner: the United States. For much of the post-World War II era, the United States has been a frequent yet selective regulator of activities outside its territory, and US federal courts are often on the front line in deciding the extraterritorial reach of US law. At stake in these jurisdiction battles is the ability to bring the regulatory power of the United States to bear on transnational disputes in ways that other states frequently dislike both in principle and in practice. This volume proposes a general theory of domestic court behavior to explain variation in extraterritorial enforcement of US law, emphasizing how the strategic behavior of private actors is important to mobilizing courts and in directing their activities.

Reconciling effectiveness and fairness in the EU leniency policy

Abstract: ................................................................................................................................ 2 TABLE OF CONTENTS ................................................................................................................ 3 ACKNOWLEDGMENTS .............................................................................................................. 9 LIST OF ABBREVIATIONS ......................................................................................................... 10 CHAPTER 1: INTRODUCTION ................................................................................................... 12 Background and Context ..................................................................................................... 12 I. Problem and Aim of the Thesis ........................................................................................... 13 II. Key Concepts and their Application in this Thesis ............................................................. 16 III. Effectiveness and Fairness ............................................................................................. 17 A. The notion of effectiveness ..................................................................................... 17 1. Notions of fairness ................................................................................................... 18 2. Reconciling Effectiveness and Fairness in Competition Law Enforcement .................. 18 B. Theories of punishment .......................................................................................... 21 1. a. Deterrence ......................................................................................................... 21 b. Retribution ......................................................................................................... 25 c. A mixed theory of punishment ......................................................................... 27 i. Approximation of the theories .................................................................... 28 ii. Application in cartel enforcement ............................................................... 29 Summary .................................................................................................................. 30 2. Application of the Key Notions throughout the Thesis ................................................. 31 C. Effectiveness ............................................................................................................ 31 1. Fairness .................................................................................................................... 32 2. Effectiveness through fairness ................................................................................ 33 3. Methodology ....................................................................................................................... 35 IV. Contribution and Scope ....................................................................................................... 36 V. Structure .............................................................................................................................. 37 VI. CHAPTER 2: EFFECTIVENESS AND FAIRNESS IN EU CARTEL ENFORCEMENT ............................ 40 Introduction ......................................................................................................................... 40 I. Legitimacy in EU cartel enforcement .................................................................................. 41 II.