Public versus Private Enforcement Models: A False Dichotomy?

Professor Simon Bronitt
The University of Queensland, TC Beirne School of Law

Alessia D’Amico
European University Institute

Drawing on themes central to Laura Guttuso’s doctoral research, this paper will reexamine the dynamics between public and private enforcement, extending her insightful analysis beyond the law governing cartels to the law governing corruption. By drawing upon recent developments in these two allied areas of legal regulation of corporate wrongdoing, we critically examine the range of factors that influence legislative/policy choices to favour public/criminal or private/civil measures, or some mix of the two. Over the past decade, “civil penalties”, “DPAs” and “settlements” have become regulatory tools of choice, forms of “hybrid” justice. But rather than simply endorse or reject hybridity for its categorical transgression of the civil/private and criminal/public divide, the paper draws insights from regulatory theory to assess the effectiveness and legitimacy of these new legal hybrids. This paper’s (tentative) conclusion is that the lack of an adequately developed philosophy of legal hybridity hampers both instrumental purposes and moral messaging in relation to our current legal regulatory responses to corporate wrongdoing both generally, and in the specific case of cartel and corporate corruption.