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  Journal Articles

Post-REF 2014 articles

Leniency (Amnesty) Plus: A Building Block or a Trojan Horse?
3(2) Journal of Antitrust Enforcement 391-407 (2015)

Leniency (amnesty) plus is one of the tools used in the fight against anticompetitive agreements. It allows a cartelist who did not manage to secure complete immunity under general leniency, to secure an additional reduction of sanctions in exchange for cooperation with the authorities with respect to operation of another prohibited agreement on an unrelated market. The instrument was developed in the US and, in recent years, it was introduced in a number of jurisdictions. This article contextualises the operation of and rationale behind leniency plus, forewarning about its potential procollusive effects and the possibility of its strategic (mis)use by cartelists. It discusses theoretical, moral, and systemic (deterrence-related) problems surrounding this tool. It also provides a comparison of leniency plus in ten jurisdictions, identifying common design flaws. This piece argues that leniency plus tends to be a problematic and poorly transplanted US legal innovation. Policy-makers considering its introduction should analyse it in light of institutional limits and local realities. Some of the regimes which already introduced it would be better off abandoning it.

Inter-Agency Evidence Sharing in Competition Law Enforcement
19(1) International Journal of Evidence and Proof 11-28 (2015)

While transnational antitrust enforcement is becoming only more common, the access to foreign-based evidence remains a considerable practical challenge. This article appraises considerations and concerns surrounding confidentiality, and looks into ways of their possible accommodation. It further identifies and critically evaluates the existing mechanisms allowing for inter-agency confidential information/ evidence sharing in competition law enforcement. The article outlines the shortcomings of the current framework and points to novel unilateral approaches. In the latter regard the focus is devoted to Australia, where the competition agency is empowered to share confidential information with foreign counterparts, also without any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a pragmatic and workable approach to inter-agency evidence sharing can be achieved.

Legislation Blocking Antitrust Investigations and the September 2012 Russian Executive Order
37(1) World Competition 103-120 (2014)

This article offers a typology of so-called blocking legislation and analyses its development, functions and legality under international law. It also presents and discusses the new Russian blocking Order, issued in September 2012, focusing on its possible effects on the European Commission’s investigation of Gazprom’s business practices (in light of EU competition law) as well as, more broadly, on foreign operations of Russian strategic enterprises.

Pre-REF 2014 articles

Export Cartels: Is it Legal to Target your Neighbour? Analysis in Light of Recent Case Law
15(1) Journal of International Economic Law 181-222 (2012)

 Note: Article submitted to REF2014

Despite the growing sophistication of antitrust regimes around the world, export cartels benefit from special treatment: they are almost universally tolerated, if not encouraged in the countries of origin. Economists do not offer an unambiguous policy recommendation on how to deal with them in part due to the lack of empirical data. This article discusses arguments for and against export cartels and it identifies the existing gaps in the present regulatory framework. The theoretical part is followed by an analysis of the recent case law: a US cartel challenged with different outcomes in India and South Africa, as well as Chinese export cartels pursued in the USA. The Chinese cases are particularly topical as the conduct at stake, apart from being subject to private antitrust actions before US courts, was also challenged within the WTO dispute settlement framework, pointing out to the existing interface between trade and competition. While the recent developments prove that unaddressed issues tend not to vanish, the new South–North dimension has the potential of placing export cartels again on the international agenda. Pragmatic thinking suggests looking for the solution within the WTO framework.

A Comparative Look on Foreign State Compulsion as a Defence in Antitrust Litigation
8(2) Competition Law Review 143-167 (2012)

This article presents and investigates the foreign state compulsion as a defence in transnational antitrust cases. It takes a comparative approach by looking at the doctrine and its developments in the United States and in the European Union. To illustrate the relevance of the defence and the difficulties of its applicability, this paper analyses the new antitrust case law emerging in the US involving Chinese export cartels. It is argued that at present the standard required to prove compulsion is too high to serve its function.


Peer-reviewed Working Papers

 Avoidance Techniques: State Related Defences in International Antitrust Cases
CCP Working Paper No. 11-2 (2011)

Short and Shorted Pieces

The EU-Russia relationship and the EU Energy Union: from Dependence and Vulnerability towards Competition and a Free Flow
A contribution to DELIVERING ENERGY LAW AND POLICY IN THE EU AND THE US: A READER (Raphael J. Heffron & Gavin Little, eds., Edinburgh University Press)

On extraterritoriality and the Gazprom case
36(7) European Competition Law Review 291-294 (2015)

On Convergence with Hiccups: Recent Amendments to Poland's Competition Law
36(1) European Competition Law Review 8-14 (2015)

Komentarz do Art. 113d—Leniency Plus
A contribution on Art. 113d (introducing leniency plus to Polish Competition Law) to the leading Polish competition law commentary entitled Ustawa o ochronie konkurencji i konsumentow, Skoczny (ed.), 2nd ed,  Beck, 1423-1430

The Irish High Court Issues its First Order on a Commitment Agreement between the NCA and an Undertaking (FitFlop)
e-Competitions, N°51262 (2013)
in coll. with AL Hinds

The Polish Competition Authority Submits a Draft Amendment to the Polish Competition Act: Revolution or Fine-Tuning?
e-Competitions N°50563 (2013)
in coll. with M Bernatt

Editorial - Both Sides Now
8(3) Competition Law Review 217-221 (2012 )
in coll. with S Calkins

Book Reviews
 Book Review: Anti-Cartel Enforcement in a Contemporary Age. The Leniency Religion, Caron Beaton-Wells, Christopher Tran (eds.)
3 Revue Concurrences 243-244 (2015)

Mapping the (New) Limits of Antitrust. Review of the Global Limits of Competition Law, Ioannis Lianos and D. Daniel Sokol (eds.)
33 Northwestern Journal of International Law and Business 1A (2013)

International Antitrust Litigation: Conflict of Laws and Coordination, Jürgen Basedow, Stéphanie Francq, Laurence Idot (eds.)
5(4) Global Competition Litigation Review 174-175 (2012)

Trade and Competition Law in the EU and Beyond, Inge Govaere, Reinhard Quick, Marco Bronckers (eds.)
18(4) International Trade Law and Regulation 106-107 (2012)

Cooperation, Comity and Competition Policy, Andrew T. Guzman (ed)
33(2) E.C.L.R. 106-107 (2012)

David Held, Cosmopolitanism: Ideals and Realities
40(2) Millennium-Journal of International Studies 400-402 (2012)

David J. Gerber, Global Competition: Law, Markets and Globalization
32(4) E.C.L.R. 221-222 (2011)

Antitrust and Regulation in the EU and US - Legal and Economic Perspective, François Leveque and Howard Shelanski (eds.)
32(1) E.C.L.R. 478-479 (2011)


The EU’s case against Gazprom is about far more than business
The Conversation, published on 24th April 2015

Europe would be empowered by an energy union
Opinion Piece published in the Irish Times on 26 September 2014
see also the online version entitled:
Why we need a European energy union
published in the Irish Times Online.

To download citations visit my Google Scholar Page



Marek Martyniszyn,
2 Mar 2015, 03:54