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Vol 23 No 5 May/June 2018

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The Law of Criminal Cartels: Practice and Procedure

ISBN13: 9780199561209
New Edition ISBN: 9780198754541
Published: September 2009
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £195.00

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The Law of Criminal Cartels provides comprehensive coverage of the cartel offence introduced into UK law by the Enterprise Act 2002, as well as of the related powers of the main regulators in the UK, EU, and overseas. The appearance of cartel conduct presents new challenges for lawyers straddling the traditionally unrelated areas of criminal and competition law.

The book is a main tool of reference for practitioners uncovering a potentially criminal cartel and considering the position of the company or individual, and for practitioners advising corporate and individual clients who are the subject of UK criminal and cartel investigations with ramifications in other jurisdictions.

This book is the first work to focus exclusively on the UK cartel offence from the practitioner's perspective. The text provides an analysis of the relevant black letter law and procedure - bringing together the criminal, regulatory, and civil law regimes. It provides detailed coverage of the history and development of anti-cartel enforcement, examining in depth the elements of the offence that give rise, for the first time, to personal criminal liability in the UK. This analysis includes identifying issues with the statutory offence where clarification through case law is likely to be required.

It also takes clear account of the international perspective, providing a detailed exposition of the UK, EU and US regimes, as well as the main regimes where such conduct is criminalised. Designed to address the problems that arise in practice, the book focuses on thorny topics such as competing jurisdictions; the interaction between criminal and regulatory investigations (information-sharing and other types of co-operation); and conflicts of interest. It also includes a full guide to the OFT's recently revised leniency regime.

The appendices include relevant OFT guidance and statutory provisions including Part 1 of the Sherman Act 1890, Part 6 of the Enterprise Act 2002, OFT Leniency Guidance and the OFT Investigative Powers Guidance.

Competition Law, Criminal Law
1. A General History of Criminal Cartels
What is a Cartel?
The US Approach to Cartels
The US Approach to Cartels
Cartel Enforcement in the UK
International co-operation
The Relevant Institutions
2. UK Criminal Cartel Conduct
The "Hard Core Cartel"
The Cartel Offence
Conspiracy to Defraud
3. Criminal Cartel Investigations in the UK
OFT Powers of Investigation
Disclosure of Information Obtained in an investigation
Parallel Civil and Criminal Investigations
Dealing with a Dawn Raid
4. The Conduct of Civil Cartel Investigations in the United Kingdom
Investigations under the Competition Act
The Investigatory Powers
Investigations by the European Commission Part II of the Act
Matters applicable to all investigations
5. Criminal Immunity in the UK and US
Type A Immunity
Type B Immunity
Commission Immunity Outside UK - Type A and B
The Coercer Test in Type A, Type B and Corporate Immunity cases
Criminal Immunity in Type B or C leniency cases
"Public Interest"
Criminal Immunity-Preliminary Issues
Conditions for Immunity
Conduct of Interviews in Immunity/Leniency Applications
Transfer of Information
Value of the no-action letter
Revocation of a no-action letter
United States:
Corporate Leniency Policy 10 August 1993
Leniency Policy for Individuals 10 August 1994
Revocation of Immunity
Incentives to Self-report
Second-In Cooperation/ Non-immunity applicant
Information Transfer
6. Prosecution of Cartel Offences in the UK;
The Pre-Trial Process
The Trial Process
Consequences of a Conviction
7. Territoriality in Criminal Cartel Investigations;
Mutual Legal Assistance
Concurrent UK/US Cartel Investigations
8. Criminal Cartel Regimes in other Jurisdictions
The United States
South Africa
Russian Federation
A Summary of the Criminal Cartel Regime in EU Member States
Appendix 1: Enterprise Act 2002, Part 6
Appendix 2: Enterprise Act 2002, Part 6 - Explanatory Notes
Appendix 3: Office of Fair Trading: The cartel offence - Guidance on the issue of no-action letters for individuals
Appendix 4: Leniency and no-action - Office of Fair Trading's guidance note on the handling of applications
Appendix 5: Office of Fair Trading: Powers for investigating criminal cartels - Guidance
Appendix 6: Memorandum of understanding between the Office of Fair Trading and the Director of the Serious Fraud Office ;