Wednesday, July 4, 2018

Deputy Assistant Attorney General Roger Alford Delivers Remarks at the University of Pennsylvania/UIBE Conference: Due Process in Antitrust Enforcement: China, Europe, and the United States

Deputy Assistant Attorney General Roger Alford Delivers Remarks at the University of Pennsylvania/UIBE Conference: Due Process in Antitrust Enforcement: China, Europe, and the United States.  Highlights include:

Judicial review by an independent court can be an important check in antitrust enforcement. The ICN Guiding Principles recognize the importance of judicial review, stating that “[c]ompetition agency enforcement proceedings should include the right to seek impartial review by an independent judicial body.” This pronouncement is consistent with general international norms.

With competition laws, the judiciary has a common law mandate to apply and develop the law, recognizing and adapting to changed circumstances and accumulated experience. In this sense, judicial review promotes the incremental development of the law, imposing a moderating effect on challenges to longstanding practices based on revolutionary impulses. Distributing power in this way, in Edmund Burke’s words, “interpose[s] a salutary check to all precipitate resolutions [and] render[s] deliberation a matter not of choice, but of necessity … mak[ing] all change a subject of compromise, which naturally begets moderation.” The thrust of change is tempered by the sharing of power. 

Second, judicial review enhances the credibility and legitimacy of competition authorities. By subjecting agency decisions to judicial scrutiny by independent courts, competition authorities promote their reputation for adhering to sound antitrust enforcement and fundamental procedural norms. It means that competition authorities only will pursue cases they believe they can win. It also means that when they don’t succeed even after appellate review, they show respect for the rule of law. It sounds counterintuitive to say that a competition authority’s reputation is enhanced even when it loses, but at a fundamental level, it is true. 

A final benefit of judicial review is that sometimes it has the potential to yield more accurate results than an agency might produce on its own. Subjecting competition authorities to judicial scrutiny enhances the agency incentives to secure the right result. It also affords an additional layer of analysis in the decision-making process.

If the courts are to play their essential role in promoting the rule of law in antitrust enforcement, it is critical that parties have meaningful judicial recourse. It means defendants can access the courts without encountering unreasonable procedural hurdles or delays. And it means that the courts are independent and impartial, free of corruption and undue government influence.

Parties must perceive that they have genuine freedom to challenge an adverse decision without undue burden. If the barriers to seeking review are too high, even the most independent and impartial court is of little value. 

Timely resolution of disputes also is a fundamental norm in antitrust enforcement. Of course, sometimes the source of the delay is outside the government’s control, and parties have no room to complain about their own strategic inertia. But otherwise, competition authorities and the courts have a responsibility to resolve cases within a reasonable time period. 

Third, judicial review is meaningful only when it is conducted by independent, impartial, and competent judges. There is little solace in knowing that agency action is subject to judicial scrutiny if the courts are corrupt or captured. Surveys indicate that judicial independence and access to justice falls along a spectrum, with some courts entirely independent from government influence, and others independent in name only. 

Taken together, these pillars of meaningful judicial review support a system in which courts play their rightful role in promoting the rule of law.

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