Access to Leniency Documents: Should Cartel Leniency Applicants Pay the Price for Damages?
Access to Leniency Documents: Should Cartel Leniency Applicants Pay the Price for Damages?

Summary/Abstract: The paper gives an overview of the South African Corporate Leniency Policy which is a whistleblowing tool used by Competition agencies to detect and punish cartel behaviour. The leniency applicant provides vital information to the competition authorities to fulfil the needs of this Policy. This information would be of great assistance to a claimant harmed by the cartel and who wishes to submit a claim for follow-on damages. Revealing this information results in serious implications for both leniency applicants and civil damages plaintiffs and poses a dilemma to Competition authorities. This paper questions whether the interest of the leniency applicant should be protected or should the information be handed over to the claimant to pursue a case for damages. After considering the status quo of the South African legal context, a survey of the EU and USA position on this is provided. The paper concludes on how a balance should be struck.

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