Privatizing Competition Regulation

At present, the task of enforcing UK competition law lies almost exclusively with a public regulator. One of the aims of the Competition Bill which is currently before Parliament is to enable private litigants to seek redress through the courts for harm caused by unlawful anti-competitive conduct. This article considers the appropriate role of private actions in the enforcement of competition law. It is argued that private actions are of both instrumental and intrinsic value: not only can private actions act as a deterrent against harmful behaviour, but they also enable those harmed by unlawful anti-competitive conduct to seek compensation for injury from the perpetrator. But private enforcement suffers from several shortcomings which are not shared by public enforcement. Accordingly, it is argued that although there is a strong case for 'privatizing competition regulation', private enforcement should be used to supplement, rather than supplant, public enforcement. This article also explores the problems within a regulatory scheme which combines both private and public enforcement, drawing on the experience of other jurisdictions to shed light on how such 'aggregation problems' might best be resolved. Finally, UK competition regulation is examined from an enforcement perspective. It is argued that the UK Competition Bill has the potential to provide a significantly more effective and efficient scheme of regulation. Whether or not this potential is realized will depend on a number of factors, particularly the ability of UK courts to interpret the legislative prohibitions in a coherent, predictable, and transparent manner which is consistent with the economic theory upon which competition regulation is based.