Table of contents for Securing compliance : a principled approach / Karen Yeung.


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                                 Part I

1. Introduction                                                3
 A. Competition, Competition Regulation and Enforcement         3
 B. Regulation and Regulatory Compliance                        5
    1. Understanding Regulation                                 5
       (a) What is Regulation?                                  5
       (b) Conceptualising the Regulatory Process: Public and
          Private Interest Theories                             6
    2. Values and the Regulatory Process                        7
    3. A Public Law Approach                                    9
    4. What Does it Mean to 'Secure Compliance'?                     11

2. Competition Law and Policy                                        15
 A. The Pursuit of Economic Efficiency Through Competitive Markets  15
 B. Competition Regulation and Non-economic Goals                     17
 C. An Overview of Australian Competition Regulation           21
    1. Why Australian Competition Law?                               21
    2. Australian Competition Regulation in Outline                  23
 D. Enforcement Discretion                                            26

3. Analysing Regulatory Implementation: A Principled Framework  29
 A. Introduction                                                      29
 B. A Framework for Analysis: Regulatory Goals and Constitutional
    Values                                                           29
    1. Regulatory goals                                              30
       (a) Efficiency                                                30
       (b) Clarity and Predictability                                33
       (c) Flexibility, Responsiveness and Timeliness          34
       (d) The Relationship Amongst Regulatory Goals                 35




   2. Constitutional Values                                         36
       (a) Authorised by Law                                        37
       (b) Certainty and Stability                                  38
       (c) Accountability and Transparency                          39
       (d) Procedural Fairness or Due Process                       41
       (e) Proportionality, Consistency and Rationality             42
       (f) The Relationship Amongst Constitutional Values: Rights in
          Regulatory Enforcement                                    43
    3. The Relationship Between Regulatory Goals and Constitutional
       Values                                                       49
 C. General Themes                                                   51


                                Part II

4. Quantifying Competition Law Penalties                            59
 A. Introduction                                                     59
 B. Theories of Penal Severity                                       61
    1. Theories of Criminal Punishment                              61
       (a) The Deterrence Approach                                  63
          (i) Penalties as Prices for Violations                    64
          (ii) The Injury to Others model ('Optimal Deterrence')  65
          (iii) The Unlawful Gain Model ('Absolute Deterrence')     66
          (iv) Enforcement Costs, Detection Rates, Risk Neutrality and
               Legal Error                                          66
          (v) Some Strengths and Limitations of Deterrence-Based
               Theories                                             68
       (b) The Desert Approach                                      72
           (i) Desert as a Justification for Punishment             72
           (ii) The Proportionality Principle                       74
           (iii) Strengths and Limitations of Desert-Based Theories 75
    2. Regulatory Penalties and Penal Theory                        77
       (a) Moral Probity and Regulatory Offences                     79
       (b) Strict Liability and Regulatory Offences                  83
       (c) Hybrid Models and Regulatory Offences: Suggested
          Principles                                                 85
 C. Competition Law Penalties                                         90
    1. The Australian Regulatory Framework                           91
       (a) The Deterrence Model                                      91
       (b) The Desert Model                                          94
    2. The Federal Court's Approach                                      96
 D. Conclusion                                                       101




5. Negotiated Penalty Settlements                                  105
 A. Introduction                                                    105
 B. Bargaining in the Criminal and Regulatory Enforcement Process   107
    1. Plea Bargaining in Criminal Proceedings                     108
    2. The Benefits of Plea Bargaining and Negotiated Penalty
       Settlements                                                 109
    3. Bargaining in Regulatory Enforcement: To Punish or Persuade? 111
    4. Critiques of Plea Bargaining                                114
       (a) The Procedural Rights of the Accused May be Undermined   114
       (b) Improper Pressure                                        115
       (c) Inaccurate or Inappropriate Outcomes                     115
       (d) Invisibility                                             116
 C. Negotiated Penalty Settlements and Procedural Fairness       117
    1. Sanctions and Procedural Fairness                            118
       (a) Hybrid Sanctions and the Civil/Criminal Divide       119
           (i) Why is the Sanctioned Conduct Considered 'Wrongful'? 120
           (ii) What is the Social Purpose of the Law in Sanctioning the
               Proscribed Conduct?                                  122
           (iii) What are the Consequences of the Sanction?      123
       (b) Hybrid Sanctions and Procedural Fairness                 125
    2. Are Negotiated Penalty Settlements Procedurally Fair?    128
    3. Negotiated Penalty Settlements: An Assessment                131
 D. Safeguarding Settlements                                         131
    1. The Enforcement Process and the Separation of Powers     132
    2. Prosecutorial Ethics and Regulatory Enforcement          135
       (a) Initiating Proceedings                                   138
       (b) Charge Bargaining                                        139
       (c) 'False' Confessions                                      140
       (d) Penalty Agreements and Recommendations                   141
       (e) The Sentence Discount and Failed Negotiations        143
    3. Judicial Oversight                                           144
       (a) Penalty Agreements                                       146
       (b) Admissions                                               146
       (c) The Giving of Reasons                                    148
    4. An Evaluation                                                149
 E. Conclusion                                                      151

6. Regulatory Bargaining and Administrative Settlements         155
 A. Introduction                                                    155
 B. Regulatory Enforcement Tools, Techniques and Purposes        157
     1. Regulatory Design and Enforcement Tools                     158




     2. Compliance Tools, Techniques and the Pyramid of
       Enforcement                                                160
       (a) Regulatory Compliance Tools and Social Purpose      162
          (i) Court Imposed Remedies and Social Purpose        163
          (ii) Administrative Settlements and Social Purpose      165
       (b) The Dynamic Enforcement Pyramid and Constitutional
          Values                                                   167
     3. Administrative Settlements, Responsive Regulation and
       Collaborative Compliance                                    170
 C. Bargaining, Adjudication and the Rule of Law                    174
     1. Forms of Social Ordering: Bargaining and Adjudication    175
       (a) Adjudica.ion                                            176
       (b) Bargaining and Negotiation                              177
     2. Bargaining and the Rule of Law                              179
     3. Regulatory Bargaining Between State and Citizen          182
       (a) Coercion and Consent                                    182
       (b) Regulatory Bargaining and Constitutional Values      185
 D.     Conclusion                                                  187

7. Administrative Undertakings in Australian Competition Law
    Enforcement                                                    191
 A. Introduction                                                    191
 B. Enforceable Undertakings and Legal Constraints                  195
 C. Remedial Undertakings                                           200
    1. Types of Remedial Undertakings                              200
    2. An Evaluation of Remedial Undertakings                      204
       (a) Remedial Undertakings as Regulatory Sanctions        204
       (b) Remedial Undertakings: Legal Principles and Constitutional
          Values                                                   206
          (i) Proper Purposes                                      206
          (ii) Procedural Fairness and Proportionality         210
 D. Merger Undertakings                                             214
    1. The History of Merger Undertakings                          215
    2. How Have Merger Undertakings Been Used?                     216
       (a) Informal Clearance                                      216
       (b) The Nature and Content of Merger Undertakings        217
    3. The Benefits of Merger Undertakings                         218
    4. Criticisms of Merger Undertakings                           221
       (a) Ineffective                                             221
       (b) Unfairness                                              223
       (c) Excessive Discretion                                    226
    5. An Evaluation of Merger Undertakings                        231
       (a) US Antitrust Law                                        233





Library of Congress Subject Headings for this publication: Antitrust law Australia, Restraint of trade Australia, Competition, Unfair Australia