The ability of private law to shape health care and public health is evident in the effects that tort law had on improving patient safety in anesthesiology and curtailing the marketing of tobacco products. One would think of health care costs as a fertile area for litigation, for many reasons: widespread provider of opportunism that invites legal challenges under a number of theories; the considerable resources that payers and health policy philanthropies have available to invest in litigation strategies; and the high stakes involved in a large industry that is unusually aggressive in the chase for consumer and health insurance dollars. One can find numerous examples of parties pursuing legal action to lower costs, often successfully. But what is striking about these cases is how isolated they are – largely individual, uncoordinated efforts – and how they have failed to meaningfully curtail provider excesses. Most tellingly, the problem of balance billing by out-of-network physicians never gave rise to significant litigation and was resolved by Congressional action that, ironically, incorporated existing common law doctrines.

This paper reviews instances of provider opportunism to obtain higher prices, including contriving to bill “charges” rather than accepting market prices for services; “upcoding” for services by overstating the amount of work involved; and consolidation to achieve market concentration and power vis-a-vis payers. It then discusses available legal theories to remedy such conduct and inventories efforts to invoke them. Finally, it applies political science theories to analyze potential explanations for the dearth of litigation in this area.

Chapter 10 provides an overview of the role and functions of private enforcement within regulatory regimes and the availability of redress. It draws attention to different ‘models of legal responsibility’ upon which regulatory regimes rely in allocating and distributing legal rights and duties between those who are subject to regulation and those whom regulation is intended to protect (‘regulatory beneficiaries’). This chapter is the most legally focused chapter in the volume, selectively highlighting several features of the institutional and enforcement context in which regulation occurs. Examples are private litigation, collective redress mechanisms, the role of courts as authoritative and final interpreters of the law and ‘alternative’ avenues for redress.

The aims of EU competition law are contested. The mainstream view that competition law prohibits conduct that harms consumer welfare leads to discussion about the proper economic approach to apply. EU competition law has often been applied in ways that address other public policy considerations, presently focusing on promoting digital markets and a green agenda. The procedures to apply competition law must safeguard the fundamental rights of undertakings and the Court of Justice has helped shape the degree of protection as well as the right to a robust judicial review of Commission decisions. Since 2004, national competition authorities have been tasked with applying EU competition law. Cooperation among national authorities and the Commission is facilitated by the European Competition Network and the ECN+ Directive has conferred on each national competition authorities the same enforcement powers that the Commission enjoys. Each national authority focuses on cases that affect its jurisdiction, the Commission retaining responsibility for cross-border infringements. Private enforcement has been facilitated by the EU legislature and a system of collective redress by which consumers secure compensation is emerging slowly in some jurisdictions.

Separation of powers or, more exactly, the rule of law, due process or, in Europe, the right to a fair trial influence the institutional setting of antitrust or regulatory authorities and law enforcement. An increased role given to specific regulation or antitrust in order to tackle some fundamental issues posed by the concentration of economic-political power does not go without independent and impartial decision-making from an institutional and procedural, a personal or a financial and lobbying perspective.

This chapter on India suggests that the Indian Competition Act of 2002 already had the possibility to offer lenient treatment to a firm that reports the existence of a cartel. However, the details for offering lenient treatment were only elaborated for the first time in 2009, in the Lesser Penalty Regulation. A revision followed in 2017. This resulted in a mere thirteen decisions of the Competition Commission of India (CCI) supported by the leniency programme. This low number may be explained by the discretion the CCI has to judge leniency applications and the uncertainty leniency applicants face in relation to damages claims. The chapter recommends addressing these issues, but also increasing the incentives to apply for leniency by introducing individualised sanctions to directors or immunising successful leniency applicants from debarment from procurement projects. Another recommendation is to avoid creating other pitfalls when the Competition Act is being amended.

The chapter assesses the Taiwanese leniency programme. Taiwan incorporated a leniency programme into the Taiwan Fair Trade Act in 2011. Since it became operational in 2012, the leniency programme has been used fifteen times. Out of these fifteen leniency applications, three applications have led to a decision. Noticing that financial rewards are not really assisting the leniency applications, the chapter investigates whether the low number of decisions could be attributed to the design of the leniency programme. This is done based upon the checklist of effective leniency programmes created by the International Competition Network. The main conclusion drawn is that the leniency programme may only be moderately effective. The chapter further argues that lawyers have identified the following elements as exacerbating the bad conceptualisation of the leniency programme: uncertainty about the calculation of the fines, access to the leniency dossier by third parties, and uncertainty on how the Taiwan Fair Trade Commission deals with cartel cases in general. Another concern that the chapter ascertains is the lack of awareness in Taiwan about the disputable character of cartels.

Competition law increasingly needs to deal with contribution claims. Claims for antitrust damages are selectively brought forward against companies with vast financial assets or established in claimant-friendly jurisdictions. There is thus an emerging need for allocating liability internally among antitrust infringers. However, the ability to claim contribution in competition law cannot be taken for granted. In Texas Industries, the US Supreme Court was clear that such claims are not currently available in US antitrust law. The aim of the book is to explain how the issue of contribution is resolved in EU competition law.

A promising solution is to handle the problem of contribution in a contractual way. Antitrust infringers could conclude an agreement which would determine the amount of their relative liabilities regarding antitrust infringement. The freedom to determine relative shares of liability may yet be viewed reluctantly from a public policy perspective. It is claimed that liability sharing agreements constitute anticompetitive arrangements, they stabilize cartels, weaken the enforcement of competition law and have a negative impact on settlements. This Chapter reveals that these statements are mostly incorrect, being applicable to US antitrust law rather than EU one. The Chapter makes a positive case for liability sharing agreements. It demonstrates that liability sharing agreements are allowed by EU law and can be concluded within certain limitations dictated by compliance with the Commission’s fining decisions and public policy rules.

This chapter sheds light on the international organisations that have been active in proliferating leniency programmes. This contribution includes the efforts of the OECD, ICN, UNCTAD and ASEAN. For each of these organisations, the chapter argues that they have a tendency to look for the common elements among existing leniency programmes and present them as an international guideline or best practice. When the existing leniency programmes diverge, the international guideline or best practice is to offer options. By not further clarifying these options, the chapter holds, the international organisations do no more than summarise local practices and pull them outside of their context. Due to this practice, convergence is unlikely to happen because, when the international guidelines or best practices are consulted, there will be an automatic reflex to also consult existing local practices and the existing literature regarding those practices.

This chapter claims that the operation and success of a leniency programme are premised on a carrot-and-stick approach that is expected to lead to a race for confession, as the highest and sometimes only reward – depending on the design of the leniency programme – is for the first cartel member to defect and cooperate with the authorities. The main pre-requisites to instigate this race for confession are the threat of severe sanctions if a cartel is caught, a high risk of detection of a cartel, and a high degree of transparency and predictability in relation to leniency. The chapter then argues that the early leniency programmes of the United States and the European Union have been revised with these pre-requisites in mind. To illustrate the importance of the theory, this chapter than evaluates the most recent version of the respective leniency programmes. The chapter finishes with some thoughts on the similarities and differences between the two leniency programmes.

Directive 2014/104/EU introduced special rules on joint and several for those engaged in consensual dispute resolution, immunity recipients and small and medium enterprises. The aim of this Chapter is to outline the liability regime for these entities. The assessment starts with the analysis of policy arguments and the search for the logic behind the special rules on joint and several liability. It is asked whether the special treatment of privileged groups is justified and whether the rules provided by Directive 2014/104/EU meet the envisioned aims. Subsequently, the assessment takes a pragmatic angle and it is asked how the special regimes of joint and several liability operate in practice and how they can be improved. The analysis shows that Directive 2014/104/EU insufficiently shields immunity recipients from an extensive private law liability and the rules on joint and several liability call the effectiveness of leniency programmes into question. The Directive’s rules on consensual dispute resolution are also flawed. Given that there is no clear legal benchmark for dividing antitrust liability, the settling parties are virtually unable to determine which settlement offer to make and they can end up overcompensating or being undercompensated.

The intersection between contribution claims and EU competition law is controversial. Theoretically, the European Commission’s decision to hold several entities liable for an antitrust infringement can be circumvented if one entity escapes liability by successfully claiming contribution. The key questions are whether contribution claims are allowed in EU competition law and what requirements competition law sets for contribution litigation. The analysis shows that contribution claims do not endanger the effectiveness of competition law. The aims of competition law enforcement are met as soon as antitrust infringers pay the fine to the Commission or compensation to the victims of antitrust infringements. The CJEU in Siemens Österreich therefore allowed for contribution in competition law to be applied. While contribution claims generally do not endanger competition enforcement, competition law influences contribution litigation. The preliminary question in every dispute on contribution is an antitrust infringement, which has already been decided. Judges should thus not go against the decisions of the European Commission and are advised to respect the findings of national courts. In particular, one must respect the catalogue of entities held jointly and severally liable by the Commission, the 10% turnover cap and the information included in the Commission’s decision.

Chapter 6 turns to the subject of 'private enforcement', which in East Asia is uneven and inadequate. It discusses this through the lens of ‘litigation culture’, or rather the culture of non-litigiousness. Claims of non-litigiousness in East Asia, and above all in Japan, have been fiercely contested by scholars. Yet the subject is nuanced; the impact of non-adversarialism has not simply been ‘debunked’. In the context of this debate, the chapter examines factors that have limited the development of consumer antitrust claims. Consistent with the value of social harmony and the ancient authoritarianism that prioritizes social stability, methods of mediation and conciliation have been favoured over court conflict. Under the influence of this tradition, private parties have often been encouraged to settle their differences. Deviating from this tradition, the chapter highlights Korea, where recent legislative developments are producing, at least on paper, stronger litigation incentives. Overall, the view is expressed that, where cultural factors contribute to non-adversarialism, thereby leading to a deficit in the vindication of private claims, it appears that cultural messaging and a shift in norms may assist in unlocking the potential of legal and procedural reforms that reduce institutional barriers and activate economic incentives.

Breaches of competition law may incur severe sanctions in Austria. Besides heavy administrative fines and nullity of contracts contravening competition law, antitrust infringers must expect private damage action claims from customers or suppliers harmed by antitrust violation. However, only very few final decisions have been rendered in Austria’s private antitrust litigation so far. Under Austrian criminal law, cartel collusion in tendering procedures may qualify as fraud or bid-rigging. Criminal convictions may in turn lead to the withdrawal of trade licences and pose a risk for the company of being 'blacklisted' – at least temporarily – in public procurement procedures. Under exceptional circumstances, dissolution of the company may be ordered if a director has committed an offence in the course of the company’s business activities; the latter possibility only applies to limited liability companies. Under Austrian company law, a director is liable to reimburse all damages caused by not applying the standard care diligence of a prudent business manager, including the compensation of damages incurred through infringements of competition law. This liability exists towards both the company and business partners.

Polish competition law is characterized by the strong predominance of public enforcement. The crucial component of the Polish system of sanctions has always been administrative corporate fines regulated in much the same way as under EU Law. So far, however, the Polish competition law does not recognize the concept of the single economic unit. This means that the amount of fine is always calculated on the basis of the whole or a part of a direct infringer's turnover. Similarly the fines imposed on associations of undertakings are calculated exclusively on the basis of an association’s turnover. Such a concept of undertaking contributes to the intensification of one of the problems related to enforcement of Polish competition law: the low level of fines imposed by the Competition Authority (CA). The 2014 ACCP amendment introduced into the Polish system individual administrative fines of up to PLN 2 million (c. EUR 450,000) for intentional infringements of the prohibition of anticompetitive agreements, and remedies which may be imposed with or without a fine. These amendments may have significant impact on the effectiveness of the Polish competition law system, in particular by strengthening the deterrent effect of the decisions of the CA.

The chapter describes how the mix of competition law sanctions and enforcement instruments in Germany has been significantly expanded in recent years. A special feature of the German competition law procedure is that there are two different types of proceedings. Administrative proceedings allow for less serious consequences, such as prohibitions, behavioural and structural remedies, and disgorgements. More severe measures, such as regulatory fines, can only be adopted in regulatory offence proceedings. Criminal law does not play a major role in the enforcement of competition law in Germany. There is only one real criminal offence, bid-rigging. Recent reforms have concerned the liability of parent companies and legal and economic successors, the codification of the leniency programme and the calculation of fines. A highly controversial issue is the liability of managers and employees. New enforcement approaches currently being discussed or already being tested include exclusion from public tenders, reputational sanctions, whistle-blowing and increased use of negotiated settlements. Private enforcement seems to be making particularly great progress as a result of the EU Antitrust Damages Directive. Overall, the current system in Germany seeks to combine incentives for voluntary compliance with tough sanctions and strict enforcement for those who nevertheless break the law.

This chapter is a scholarly attempt to identify the purpose of private enforcement in EU competition law. Section 2 presents US antitrust law as the model where deterrence has a predominant role in private enforcement and which has served as a source of inspiration but not a role model for EU competition law. Section 3 presents the purpose-setting of EU competition law at the intersections of three aims: effective remedy in terms of in integrum restitutio, fundamental rights and public policy. Section 4 defines the limits of private enforcement’s deterrent function in EU competition law. The chapter’s central argument is that while private enforcement has multiple purposes in EU competition law, it represents an idiosyncratic compromise between policy-oriented deterrence and the traditional notions of civil law (full compensation, prohibition of unjust enrichment). It is demonstrated that while serving a public policy purpose and making use of the grey zone between compensatory and super-compensatory damages, EU “private competition law” does not go beyond that and remains within the confines of “compensation”. The fact that it is the deterrent side-effects that make private enforcement relevant for EU competition law and subject to special legislative attention does not call into question its compensation-oriented DNA.

This chapter explore some implications of the book for scholarship on Chinese law and politics. Many legal scholars speculate about whether China might adopt “rule by law” without embracing “rule of law.” This stylized discourse, however, assumes that the Chinese government is willing and able to implement “rule by law.” However, because coercive substitutes for the law are often available and preferred, even “rule by law” is optional, and discussions of rule of law norms are on even shakier grounds than legal scholars realize. I suggest that the economic and ideological contests between China and Western countries will increasingly depend not on who better represents the rule of law, but on who has more inclusive institutions. Should the Chinese government maintain its tax capacity and be willing to engage in redistributive social spending on the poor, its domestic legitimacy will strengthen. The book thus suggests that both policy makers and social scientists should pivot away from studying the Chinese state’s predilections for the rule of law and toward its capacity and willingness for inclusivity and redistribution.