Professor Kit Barker
The University of Queensland, TC Beirne School of Law

Laura Guttuso’s unfinished work explored the critical interface between public and private enforcement mechanisms in the competition law space. Although her final thesis was never fully articulated, its central premise was clear - that ‘private’ and ‘public’ systems for dealing with particular forms of wrongdoing associated with anticompetitive practice need much better co-ordination if they are not to frustrate each other.  The early parts of her work revealed key tensions between private and public enforcement mechanisms in this sphere. Some of the points of tension (‘linkage points, as she called them), relate to evidence and process, but there are also more complex contests between underlying aims – economic efficiency, deterrence, natural justice, corrective and distributive justice. Rather than assuming that private enforcement actions exist to serve only public aims and values - or indeed that public systems themselves serve to protect only the collective good and not to protect particular private interests, she set out to consider what aspects of ‘the private’ can usefully be integrated into ‘the public’ process and what aspects of ‘the public’ can sensibly be incorporated into ‘the private’.

In this paper, Barker examines the wider reverberations of this type of thinking and considers the necessities and prospects of more co-ordinated thinking across and between public and private law, drawing mainly on tort theory and practice.  The broad messages are very much the same. From this point of view, Laura’s work must, he suggests, be appreciated for its deeper philosophical implications, as well as for the more specific, practical suggestions it had for substance and process in the design of competition law rules.