New publication shines a light on the proliferation – and worrying fragmentation – of private antitrust enforcement regimes

A new ICC publication shines a spotlight on the increasingly fragmented nature of national regimes designed to allow citizens and companies to claim compensation if they are the victims of alleged antitrust abuses.

Once a phenomenon limited to the United States, the past decade has seen a proliferation in new rules across more than 40 jurisdictions to allow private actions to enforce competition law – spurred, in part, by the European Union Damages Directive in 2014. The new analysis – developed through an extensive survey of ICC’s global network – emphasises how this growing patchwork of rules creates severe difficulties for firms in understanding and navigating legal risks when operating in multiple markets.

The ICC Compendium of Antitrust Damages Actions – which contains an unprecedented cross-jurisdiction review of landmark cases across economic sectors and industries – aims to help business understand the heightened risks they face of being sued for damages in light of the growth of this novel area of antitrust law.

In doing so, the ICC Compendium calls on companies to implement effective compliance procedures to mitigate potential antitrust risks – while also pointing to the need for greater harmonisation of national legal systems to avoid creating undue barriers to cross-border trade and investment flows.

ICC Secretary General John W.H. Denton AO said: “All businesses, regardless of their sizes or sectors, need to understand the risks they face in operating internationally. We hope the Compendium will enable companies to better understand potential antitrust risks in their international operations – reducing the risk of legal uncertainty placing a chilling effect on the investments and cross-border trade that will be vital in driving a resilient recovery from the Covid-19 crisis.” Mr Denton added: “The growing fragmentation of national approaches to private competition enforcement highlighted by the report should be a wakeup call to governments as regards the need for greater alignment of national regimes – both to ensure effective redress for anti-competitive behaviour and to avoid creating undue barriers to welfare-enhancing commercial activities.”

The ICC Compendium does not seek to explore the complexities of each legal system but, rather, identifies nine key issues – serving as an easy access reference point, illustrated by relevant case-law and decisions across a spread of geographies.

François Brunet, Chair of the ICC Task Force on Antitrust Damages Actions said: “The Compendium provides a much needed overview of key decisions in this novel – and often uncertain – area of antitrust law. Our extensive survey of national decisions should enable greater understanding of how courts have dealt with certain issues – which, we hope, will help drive greater harmonization of national enforcement. The study should also provide competition authorities a broader understanding of the consequences of their approaches based on learning from other jurisdictions.”

The new report was published following over a year of work by members of ICC’s Commission on Competition – comprising leading antitrust experts from business and private practice in over 100 jurisdictions.

Download the ICC Compendium of Antitrust Damages Actions

To find out more about the work of the ICC Competition Commission please contact Caroline Inthavisay.

ICC and TradeFlow Capital Management will introduce a partnership to mobilize capital and improve trade finance access for small- and medium-sized enterprises (SMEs).

ICC Secretary General John W.H. Denton AO announced an ambitious partnership with TradeFlow Capital Management during the World Trade Organization’s 2021 Global Trade & Blockchain Forum, as part of ICC’s growing effort to enable SME access to short-term liquidity to survive the ongoing economic crisis and thrive in the post-pandemic future Leveraging TradeFlow Capital Management’s innovative non-lending and non-credit based instruments and ICC’s global network of over 45 million chambers of commerce and businesses, the partnership will enable the creation of an ICC SME Fund to provide small businesses with the right level of financial support to execute import/export trades in bulk commodities.

ICC Secretary General John W.H. Denton AO said: “Small businesses around the world continue to suffer from uncertain economic conditions caused by the Covid-19 pandemic. While governments and financial institutions have taken steps to support SMEs, more needs to be done to ensure their survival. “ICC is delighted to launch this partnership with TradeFlow Capital to unlock liquidity for SMEs and keep the global economy moving forward. We are confident that our partnership with Tradeflow Capital and other initiatives under our ICC TradeNow campaign will create new, tangible opportunities for SMEs everywhere.”

ICC TradeFlow Capital will be one of a diverse range of solutions offered through ICC TradeNow, a global ICC campaign to accelerate the provision of trade finance to SMEs.

Tom James, CEO and CIO, TradeFlow Capital Management said: “Tradeflow is proud to partner with ICC on this ambitious and much needed fund for small businesses. By leveraging the combined strengths of ICC and Tradeflow, ICC Tradeflow Capital has the potential to enable many billions of dollars of SME commodity transactions each year. “TradeFlow applauds ICC’s continued support for businesses worldwide – especially in the face of the consequences associated with the COVID-19 pandemic. Supported by ICC TradeNow, we are confident that this partnership will reduce risk, improve trade opportunities for SMEs, and alleviate poverty.”

ICC will host a series of workshops for chamber of commerce leaders in Asia and Europe to share insights on potential partners who could help finding the liquidity needed to bridge the trade finance gap.

For more information, please contact:

  • Timothy Conley

  • Global Communications Officer

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High-Level Meeting with Heads of State and Government on the International Debt Architecture and Liquidity

ICC Secretary General John W.H. Denton AO

– Thank you, your Excellency Mr. Secretary-General and the Honorable Prime Ministers of Canada and Jamaica, for the opportunity to address this session.

– Your Excellencies, distinguished colleagues, ladies and gentlemen:

– In our first High Level Meeting – in May of last year – we urged governments not to forget the financing needs of small businesses who have been deeply affected by the economic impacts of COVID-19.

– Recent research has shown two important points bearing on the plight of small and medium-sized enterprises (SMEs):

– The first is that COVID-19 has had a dramatic impact on the failure rates of SMEs. In countries which cannot afford to provide government support for SMEs – including least-developed countries – failure rates have been stark indeed.

– The second point is that support policies enacted during the pandemic will not lead to a ‘ticking time-bomb’ of SME failure rates as economies recover. A line of thinking goes – if in ordinary times 20% of SMEs fail in year one, with that figure increasing to 50% by year five, are government policies supporting businesses that would otherwise fail?

– Resent research by pre-eminent economists answer that question,1 and the answer is an emphatic “No”. There is strong and growing evidence that the outsized fiscal packages that advanced economies were able to deploy in 2020 have helped keep businesses and markets afloat into 2021, without the risk of a ‘time-bomb’ of over-indebted SMEs.

– 1 Gourinchas, Pierre-Olivier et al, ‘COVID-19 and SMEs: A 2021 “Time Bomb”?’ (NBER Working Paper 28418, January 2021).

– Instead, the biggest risk to SME failure at this juncture instead come from a lack of sustained fiscal support until such time that economic activity returns to pre-pandemic levels.

– This in turn creates a risk of a sudden retrenchment of bank finance which could further accelerate business failures.

– It is abundantly clear that what we need is a new global solidarity package that can enable developing economies to implement targeted stimulus and support programmes to keep their economies afloat, support SMEs and mitigate the risks of long-term economic scarring.

– While we are glad to see positive signals recently from the G20 and G7 on a major issuance of IMF Special Drawing Rights (SDRs), the time for debate on this is surely over.

– Liquidity conditions in emerging economies are tight now; SMEs are hurting now. Let’s not have a proposal before the IMF Executive Board for a US$ 650 billion general allocation of SDRs by June, let’s have SDRs allocated and exchanged as needed by May.

– Further, G20 economies are on notice that global business expects to see a strong political commitment to a re-allocation of new SDR reserves to low and lower-middle income countries.

– More than two-thirds of a general allocation of SDRs will flow to G20 economies, but it is vulnerable countries – DSSI-eligible countries and small island developing states – that most need additional support. We call on the G20 to commit to a reallocation of at least a quarter of any general SDR allocation.

– Friends, entrepreneurs don’t want government support if they can help it: they want to generate a profit by adding value to their communities. But for too many businesses, health policies presage the shuttering of doors, the layoff of workers, the crushing of dreams and the creeping advance of despair…

– We desperately need to scale production and ensure the equitable distribution of vaccines.

– But in the meantime, it is vital that governments continue to support SMEs and enable the liquidity boost necessary to achieve this end. Thank you

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