Cartel deterrence and settlements: the brazilian experience

Paulo Furquim Azevedo () and Alexandre Lauri Henriksen

No 265, Textos para discussão from Escola de Economia de São Paulo, Getulio Vargas Foundation (Brazil)

Abstract: Settlements are an important part of a program of cartel deterrence, particularly when the likelihood ofconviction and the litigation costs are higher. This type of negotiated procedure to reach finality is inessence complementary to the fully adversarial procedures associated to the trial by the administrative orjudicial courts, and to other investigative instruments, such as the leniency agreement. The Brazilianexperience provides some insights about the different models of direct settlement in cartel cases and thecomplex interaction among settlements, leniency agreements, and trial outcome. First, there is leeway forthe complementary models of settlements, the first oriented mainly to increasing the likelihood ofdetection, and the second oriented to saving social costs of litigation. Second, the concern with thepreservation of the demand for leniency agreements led the competition authority to restrict the use ofsettlements, which are effectively designed for the defendants that are likely guilty and give higher valueto finality. The recent experience illustrates that the current settlement policy has not caused any adverseeffect on leniency agreements, while reducing litigation costs and granting finality in some cases.

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Date: 2010-07-22
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