Saturday, May 18, 2019
International Competition Network Adopts Framework for Competition Agency Procedures and Recommended Practices on Investigative Process
At its annual conference, the International Competition Network (ICN) established a Framework on Competition Agency Procedures (CAP) that reflects the commitment by its participants to uphold fundamental procedural fairness principles and adopted Recommended Practices for Investigative Process that offer aspirational guidance and norm-setting principles on procedural fairness. The ICN also presented reports on vertical mergers, vertical restraints, competition agency design, and private enforcement, the Department of Justice and the Federal Trade Commission (FTC) announced today. The ICN announced that the United States will host the 2020 ICN annual conference in Los Angeles, California.
The ICN held its 18th annual conference, hosted by Colombia’s Superintendence of Industry and Commerce, on May 15-17, 2019, in Cartagena, Colombia. Nearly 500 delegates from more than 80 jurisdictions participated, including competition experts from international organizations and the legal, business, academic, and consumer communities. The Department of Justice’s delegation was headed by Assistant Attorney General Makan Delrahim, and FTC Chairman Joseph J. Simons led the FTC delegation. The conference highlighted the achievements of the ICN working groups on cartels, mergers, unilateral conduct, competition advocacy and agency effectiveness, and featured discussion of the challenges of digitalization.
The conference approved two significant instruments to promote and strengthen procedural fairness in competition agency proceedings. The CAP came into effect on May 15, 2019, with the ICN announcing 62 participating agencies. The CAP establishes fundamental, procedural fairness principles that address non-discrimination, transparency, notice and meaningful engagement, timely resolution, confidentiality protections, impartiality, access to information and opportunity to defend, representation by counsel, written decisions, and independent review. By joining the CAP, competition agencies affirmatively indicate their intention to adhere to the principles laid out in the Framework. The principles are further supported by implementation provisions that facilitate agency-to-agency cooperation on procedures and regular review of CAP operations. While sponsored by the ICN, the CAP is open to all competition agencies around the world, including both ICN members and agencies that are not members of the ICN.
The U.S. Department of Justice served as co-chair for the Agency Effectiveness Working Group, which developed the Recommended Practices for Investigative Process in conjunction with the FTC. The Recommended Practices establish detailed, aspirational, procedural fairness norms for competition agency investigative tools, transparency, engagement during investigations, decision-making safeguards, and confidentiality protections. As Recommended Practices, they are the ICN highest level consensus statement on agency procedures and procedural fairness.
“The ICN has become a crucial instrument for dialogue, cooperation, and convergence within the global antitrust community,” said Assistant Attorney General Delrahim. “The Annual Conference provides us all with an opportunity to reflect on the great progress that has been made in competition policy and enforcement around the world, as well as the challenges that lie ahead.”
On May 15, 2019, Assistant Attorney General Delrahim spoke on a panel celebrating the launch of the ICN CAP. The panel recognized the historic nature of the multilateral framework. The principles outlined by the Multilateral Framework on Procedures, as described by Assistant Attorney General Delrahim in a speech at the Council on Foreign Relations on June 1, 2018, served as a foundation for the CAP. The CAP was adopted by the ICN on April 3, 2019, and it became open for all competition agencies to join as participants on May 1, 2019.
Chairman Simons helped lead the conference’s panel discussion of Merger Review in the 2020s. The Panel explored whether and how digitalization and globalization are likely to change merger review in the 2020s, given their continued influence on the evolution of competition policy. The FTC has for the past three years co-chaired the ICN’s Merger Working Group, which promotes convergence toward best practices in merger process and analysis and seeks to reduce the public and private costs of multijurisdictional merger reviews. This year, the Merger Working Group presented a report on vertical mergers and promoted the use of its Framework for Merger Review Cooperation, developing explanatory material on the types of documents typically exchanged in multijurisdictional merger review to support sound enforcement cooperation.
“Understanding how a market works is crucial to assessing a merger’s competitive impact, and more learning about digital markets can help refine our competition assessments. Yet digital markets do not require significant changes to our existing merger laws or analysis,” said Chairman Joseph Simons. “This is because our antitrust framework has consistently proven that it is sufficiently robust and flexible to fit new markets and new ways of doing business.”
Deputy Assistant Attorney General Roger Alford moderated a panel discussing agency effectiveness through organizational design. The panel was part of the Agency Effectiveness Working Group project on competition agency choices in the design of their enforcement programs.
Randolph Tritell, Director of the FTC’s Office of International Affairs, led the concluding panel, showcasing how diverse competition agencies around the world benefit from implementing all types of ICN work product.
The Unilateral Conduct Working Group presented its project on vertical restraints. The project examined a series of hypothetical vertical restraints and their effect on competition and potential resulting efficiencies.
The Cartel Working Group presented a new chapter on private enforcement for the working group’s Anti-Cartel Enforcement Manual and a report on leniency incentives.
The Advocacy Working Group compiled case studies as part of its Strategy Project, with specific examples of how agencies have developed strategies and assessed their advocacy initiatives. The working group also drafted a report on ICN member competition advocacy initiatives involving digital markets.
Created in October 2001 to increase understanding of competition policy and promote convergence toward sound antitrust enforcement around the world, the ICN, founded by 15 agencies including the Department of Justice’s Antitrust Division and the FTC, has grown to 139 member agencies from 126 jurisdictions, supported by a wide network of non-government advisors from around the world.