Cartel Case Shows Not All Corporate Misbehaviour Goes Unpunished
Caron Beaton-Wells, 8 Aug 17
       

Japanse shipping company NYK pleaded guilty to cartel conduct. STRINGER/ Reuters

A first of its kind Australian conviction of a Japanese company for cartel conduct shows reforms in this area of the law are starting to work and these cases can be prosecuted successfully.

Japanese shipping company, NYK, had been fixing freight rates, rigging bids and dividing markets in shipping cars en route to Australia, over a period of more than three years. The company pleaded guilty to charges relating to this conduct, was fined $25 million by the Federal Court, discounted from $50 million for its contrition and its early cooperation as well as its promise of ongoing cooperation.

This cooperation means its alleged co-conspirators in the cartel – another four foreign shipping companies – are likely to go to court over this as well.

Cartel conduct was made a criminal offence in 2009, after a long and contested debate. Some competition lawyers and academics argued that criminal treatment of cartelists was inappropriate because their conduct was not sufficiently morally reprehensible. Others were concerned about the practical burdens of administering a criminal regime.

But the successful prosecution of this first case, and the damning comments by the judge in particular, will be held up by the Australian Competition and Consumer Commission (ACCC) and many others as a vindication of the reform.

According to the judge in this case, Justice Wigney:

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