Remedies - How Far and How Much

One of the age-old questions that pervades every area of antitrust law is how to craft the appropriate remedy once conduct has been found to contravene antitrust laws. In general, the appropriate approach to remedies has historically been paid less attention than how to define or identify the problematic conduct itself. However, the central role that remedies have played in recent high profile unilateral conduct cases, as well as the remedies ordered by the European Commission (the “EC”) and recently upheld by the European Court of First Instance (“CFI”) in Microsoft, have moved remedies to the forefront of discussion for unilateral conduct. The need for a precise scalpel rather than a blunt sledgehammer to craft the appropriate remedy is arguably amplified in unilateral conduct cases where there is a need to maintain a fine balance between discouraging “anti-competitive” conduct and encouraging aggressive but competitive behavior. With record fines issued by the EC in unilateral conduct cases and the CFI’s recent decision to uphold the EC’s decision in Microsoft, the debate continues as to whether, in this context, fines are necessary or adequate, behavioral remedies are workable, and structural remedies are ever appropriate. The appropriate approach to remedies in unilateral conduct cases is an inescapable point for consideration in our “marathon” of discussions. The approach to remedies in unilateral conduct cases differs widely across the major antitrust jurisdictions. For instance, in Canada, with the exception of the airline industry, the underlying legislation does not allow for the imposition of any kind of fines once conduct has been found to contravene the “abuse of dominance”