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A look ahead to four issues that will be ‘hot’ in 2012:
(1) Human rights. There are a number of cases before the ‘European Courts’ (this includes the EFTA Court and ECtHR) which raise fundamental rights arguments. Decisions in these cases will affect issues such as: conduct of investigations and reliance on ‘hearsay’ evidence; parent company liability; liability to pay fines pending appeal; and intensity of review of cartel decisions.
(2) Internationality. Co-operation amongst regulators in established cartel-busting jurisdictions (EU, US, Japan, Australia) will continue. But, we will also see increasing activity (and therefore risks) in ‘new’ jurisdictions, particularly those in Africa.
(3) Damages. Will the European Commission finally get a directive (billed to cover issues such as protection of whistleblowers, group actions and claimant access to evidence) adopted? June is the target.
(4) Exchange. Evidence secured in the context of e.g. anti-bribery investigations will increasingly be shared with antitrust authorities (and vice versa). For those caught up in investigations, controlling the dispersion of evidence will continue to challenge. The Pfleiderer decision opens the doors to differing approaches in different EU jurisdictions. The Commission has been relatively successful in preventing disclosure of particularly sensitive documents in US litigation to date, but claimants will continue pushing.