Legal certainty and competition law: Can they be reconciled?
Date
2018-12
Authors
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Journal ISSN
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Publisher
Stellenbosch : Stellenbosch University
Abstract
ENGLISH ABSTRACT: Legal certainty and the rule of law are important principles in many jurisdictions around
the world. An important part of these principles is that laws should be sufficiently clear
and predictable, so that individuals can plan their conduct in the knowledge of the legal
consequences that will flow from it. In particular, individuals should not be found liable for
infringing laws, or be penalised for doing so, where those laws did not provide sufficient
certainty in advance that the conduct would be illegal.
Competition laws have frequently been criticised for lacking certainty and predictability.
So far most of the criticism in this respect has been levelled at US antitrust law, criticisms
that will be discussed briefly in this paper. This dissertation will demonstrate that similar
criticisms can be made of the competition laws of many other jurisdictions, using five
competition regimes as a representative sample, namely the EU, Australia, Canada,
South Africa and Hong Kong (the “subject jurisdictions”).
What is “sufficient” legal certainty? After all, many laws are couched in terms that are, to
a greater or lesser extent, vague. This dissertation will argue that a high degree of legal
clarity is required of competition laws because of their largely criminal or quasi-criminal
nature, and uses the criteria laid down by the European Court of Human Rights as an
appropriate benchmark in this respect. We show that, to varying degrees, the competition
laws of the subject jurisdictions do not meet those criteria, and therefore they are not
sufficiently certain.
We also demonstrate that this lack of legal clarity leads to many adverse consequences
in terms of waste of society’s resources, unfairness, harm to the credibility of the legal
system, and others.
We then look at possible ways of solving the problem. We show that the existing methods
that have been used to bring greater clarity into competition laws, or mitigate the adverse
effects of lack of clarity, have not been fully effective in achieving this. Finally we propose
a new way forward which mitigates substantially the adverse effects of legal uncertainty
in competition laws.
AFRIKAANSE OPSOMMING: Geen Afrikaanse opsomming geskikbaar nie
AFRIKAANSE OPSOMMING: Geen Afrikaanse opsomming geskikbaar nie
Description
Thesis (LLD)--Stellenbosch University, 2018.
Keywords
Legal certainty, Antitrust law, Jurisdiction -- South Africa, UCTD, European Court of Human Rights