Monday, August 4, 2014
Stanley Wong (StanleyWongGlobal) describes The Independence of Decision-Maker Principle in Competition Law Enforcement.
ABSTRACT: In an earlier article, Thinking About Procedural Fairness of Competition Law Enforcement across Jurisdictions: A Suggested Principled Approach, I suggested that in order to engage in meaningful debate about procedural fairness, a principled approach is needed. I proposed that such a principled approach should contain, at minimum, three core principles, which I labeled as Disclosure Principle, Right of Defense Principle, and Independence of Decision-Maker Principle.
In this article I propose to elaborate on the Independence of Decision-Maker Principle (Independence Principle). In the earlier article, I described the Independence Principle in the following terms: "The decision maker which decides whether or not there is a violation of competition law should be independent and impartial." I also suggested that for analytical purposes, the process of competition law enforcement should be divided into five stages: initiation, investigation, prosecution, decision on the merits, and decision on sanctions, if any.
It is also important to identify another stage in discussing procedural fairness. This is the stage when a decision on the merits (or sanctions) is reviewed by a court that is composed of one or more independent and impartial decision makers. I refer to this stage as "judicial supervision" rather the more commonly used terms such as "judicial review" or "judicial appeal" as the latter terms often have special meanings in legal systems about the nature of the judicial supervision. In jurisdictions that vest making in competition enforcement in an administrative body, the availability of judicial supervision and its nature are at the center of the debate as to whether competition laws are criminal in nature.
Finally as a preliminary matter, it is important to distinguish between different institutional structures for decision making in competition law enforcement. For the purpose of this article, it is sufficient to identify decision making in competition law enforcement in a jurisdiction as a variant of one of two models for decision making on the merits: Administrative Model and Litigation Model.