Leniency programmes have been a huge success in many jurisdictions over the last 20 years, bringing cases to the attention of regulators and enabling them to successfully prosecute international cartels. But is the system still working well? The disincentives for leniency are increasingly strong. These include ‘side-effects’ of leniency applications, such as the heavy costs associated with broad document disclosures, and continuous cooperation with regulators and follow-on private litigation. In addition, regulators have been changing the rules of leniency, often without complete transparency. And cases are becoming more complex and not as clear-cut, which begs the question whether a full confession of hard-core conduct is merited.

This panel will explore practical issues associated with the strategic choice of seeking (or foregoing) leniency. The panel will also discuss a number of novel and developing theories of hard-core cartel conduct – such as information-sharing among competitors, algorithmic conspiracies, and collusion via ‘hubs’ or other conduits – and whether leniency still makes sense in such scenarios.