Private Enforcement of Competition Laws

Abstract

This article addresses a long-standing controversy in many antitrust/competition law regimes around the world, including Canada, as to the appropriate role for private enforcement of competition laws. The United States, from the origins of its antitrust law in 1890, has provided for an expansive role for private actions for violations through treble damages remedies, class action procedures, one-way cost rules, contingent fees, and civil jury trials. The Canadian experience has been sharply different: statutory recognition of any role for private action occurred only in amendments to the Competition Act in 1976, and private damages actions were confined to criminal violations of the Act. The Bureau of Competition Policy has recently proposed a more expansive role for private actions under the Competition Act, in particular providing mechanisms for private parties to have direct access to the Competition Tribunal in non-criminal matters. The authors review the comparative experience with private antitrust enforcement; evaluate the arguments for and against the private enforcement of public laws generally; and review theoretical debates over the role of private enforcement of antitrust laws on either deterrence or compensation grounds. The authors conclude with a set of procedural and remedial proposals designed to structure and discipline in appropriate ways a private enforcement regime under the Competition Act.