Cultural and Political Forces in the Criminalization of Cartels: A Case Study on the Chilean Experience

Abstract

Despite the increasing number of countries opting for a criminal antitrust enforcement, outside the US, the implementation of criminal penalties has been quite deficient. Among the main arguments provided by the relevant literature to explain such deficiency, in addition to the procedural obstacles, there is a belief that the criminalization of cartels is often the product of a top-down process led by transnational enforcement interests rather than domestic bottom up pressures. And, as such, it bears the original sin of missing the required enforcement culture and support of the decisive stakeholders. Against this background, the present article provides an empirical investigation exploring the law making processes that led to the criminalization of cartels in Chile. We observe that, when the policy decision is highly politicized, i.e. the consensus building motive is predominant, even if the decision making is not driven by transnational interests but by purely domestic pressures, a regulatory populism might still overcome important balancing policy considerations, with the risk of jeopardizing the results’ effectiveness.