Legal certainty and competition law: Can they be reconciled?

Brown, William (2018-12)

Thesis (LLD)--Stellenbosch University, 2018.


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

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