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Thursday, February 28, 2013

REPORT ON THE OECD/ICN SURVEY ON INTERNATIONAL ENFORCEMENT CO-OPERATION

Posted by D. Daniel Sokol

REPORT ON THE OECD/ICN SURVEY ON INTERNATIONAL ENFORCEMENT CO-OPERATION

OECD Report on international enforcement co-operation that the Secretariat
produced on the basis of the responses (55 from both OECD and non-OECD) to the
OECD/ICN questionnaire that was sent last summer to competition agencies around
the world. The OECD Secretariat Report was presented yesterday to Working Party
3 of the OECD Competition Committee.

 

The key findings of the Report
include:

 

 

·         International
cooperation is a policy priority for a vast majority of competition agencies.
The globalization of markets, and consequently of anticompetitive activity,
requires increasing and enhanced cooperation in enforcement;

 

·         Most agencies
find international cooperation to be useful for their enforcement strategies.
Informal cooperation has proved particularly valuable in investigations (and
might be sufficient in-and-of-itself in many cases). The benefits from
cooperation outweigh the costs;

 

·         Competition
agencies can rely on different legal bases for international cooperation. Some
are designed specifically for the purposes of competition enforcement; in the
absence of a specific competition instrument, other international cooperation
instruments can apply;

 

·         Formal
instruments for cooperation, such as comity provisions and notification
mechanisms, are widely available but are used only by a limited number of
agencies;

 

·         Outside of
regional cooperation, frequent or regular experience in international
cooperation appears to be concentrated among a few, more experienced, agencies.
Experience with international cooperation has, however, increased significantly
in the last five years and is expected to keep doing so (responses indicate that
the number of multi-jurisdictional cases is rising over time). Merger review is
the enforcement area in which there has been the highest number of cases
involving international cooperation;

 

·         Regional
cooperation is common in many parts of the world. However, actual experiences
with case cooperation seem to differ significantly across regional
networks;

 

·         Participants
in regional networks identified specific advantages (such as the strong legal
basis for cooperation, convergence in national laws and agency procedures) that
are seen as contributing to increased effectiveness. A few disadvantages of
regional cooperation also were identified;

 

·         Legal
limitations, due to differences in legal systems and to restrictions in domestic
legislation, appear to be one of the more important limitations on international
cooperation. Addressing these limitations could be beneficial, despite the costs
associated with it;

 

·         Effective
cooperation of enforcement action is enhanced by the ability of enforcers to
exchange information (both confidential and non-confidential) about the cases
they are investigating. The exchange of information remains a core feature of
international cooperation;

 

·        
Confidentiality waivers are often relied upon by agencies, when
possible, to address existing limitations to the exchange of information.
Experiences with waivers are generally positive, although the use of waivers is
not as broad as it might be;

 

·         The OECD
played an important role in shaping the current framework for international
enforcement co-operation. It also confirmed that the role of the 2005 OECD
recommendation on international co-operation was significantly more effective
than that of the 2005Best Practices on the exchange of information in cartel
investigations;

 

·         Incentives to
engage in international cooperation might be improved through the adoption of a
clear legal and institutional setting for cooperation and increased awareness of
the benefits of cooperation;

 

·         Exchanges of
information (especially confidential information) is a key area for improvement.
Many respondents suggested that agencies should agree on a clearer legal
framework for the exchange of information. Reforms in the area of
confidentiality waivers are viewed as a way to foster more valuable cooperation
through a more effective exchange of confidential information between
enforcers;

 

·         OECD
instruments could be amended or updated  to reflect the current status and needs
of  international co-operation. Developing a model bilateral or multilateral
co-operation agreement and a model bilateral or multilateral agreement for the
exchange of information are among the projects which obtained the largest
support among respondents, followed by the development of a model
confidentiality waiver.

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