The DOJ has been conducting an aggressive enforcement campaign against international cartels since 1996. In the past, the DOJ could indict suspects located in the UK, but the requirement under previous extradition arrangements for the offence to be a crime in both requesting and receiving states (i.e. dual criminality) prevented their extradition since price-fixing was not a criminal offence on the UK. Most notably, in the auction house commissions scandal, the former Chairman of Christie’s, Sir Anthony Tennant, could not be extradited under the dual criminality principle, and refused to go to New York to stand trial.
However, on June 20, 2003, Section 188 of the UK’s Enterprise Act 2002 became effective, which makes it an offence, punishable by up to five years in prison, for an individual “dishonestly” to make, or implement, with another individual, arrangements to fix prices, or share markets, between companies operating at the same level in the supply chain. Earlier in the year, on March 31, 2003, the UK and US governments had signed a new Extradition Treaty (the “Treaty”), which became effective in the UK on January 1, 2004 (although the Treaty has not been ratified in the US).
Article 2(1) of the Treaty states that, “Any offence shall be an extraditable offence if the conduct on which the offence is based is punishable under the laws in both states by deprivation of liberty for a period of one year or more or by a more severe penalty.” Although the UK cartel offence is defined differently from a Sherman Act conspiracy, Article 2(3)(a) of the Treaty states that the offences do not have to be described by the same terminology. The Treaty also applies to offences committed before or after it came into force (Article 22(1)).
However, there is some debate as to whether extradition from the UK for a Sherman Act violation is possible for offences committed before the criminal provisions of Enterprise Act 2002 came into force. Therefore, in Mr. Norris’ trial, the DOJ presented seven counts of conspiracy to defraud, and two obstruction of justice charges, as offences connected with the administration of justice and serious criminal offences in both the UK and US.
The Treaty also specifically provides for issues that frequently arise in a multi-jurisdictional cartel investigation. With respect to extraterritoriality, the Treaty provides that where the offence has been committed outside the territory of the requesting state, extradition will be granted, “if the laws in the Requested State provide for the punishment of such conduct committed outside of its territory in similar circumstances”. Even if the “similar circumstances” condition is not met, the Treaty allows for the executive authority of the requested state to grant extradition at its discretion (Article 2(4)). A grant of amnesty will also not be a bar to extradition. The Treaty provides that extradition is not precluded by the fact that the competent authorities of the requested state have decided not to prosecute the person who allegedly committed the acts for which extradition is sought (Article 5).
The actual mechanics of the extradition to the US are governed by the UK’s Extradition Act 2003, and requires the UK’s Home Secretary to have the final decision following any judicial ruling. However, the abolition in the Treaty of the prima facie evidence requirement in US requests for extradition from the UK, will likely mean a considerable speeding up of the present process, which can take a year or more.
In light of the above developments, we predict that extradition requests from the US antitrust authorities are likely to increase, and succeed, predominantly because the former prima facie evidence requirement in the countries’ extradition arrangements has been abolished with respect to extradition requests from the US to the UK (although the US retains its requirement for probable cause for requests in the opposite direction). The US authorities need only provide “information” sufficient to justify a UK’s judge’s issuing of a warrant for the arrest of a person accused of the offence. Thus, US jail time potentially beckons for UK price fixers as the DOJ continues to actively seek the extradition of overseas executives who breach the US antitrust laws, and interfere with the administration of US justice.