Let's talk antitrust – Fair(er) global antitrust enforcement? The ICN’s Framework on Competition Agency Procedures

Video | July 2019 | 6:00

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Let's talk antitrust – Fair(er) global antitrust enforcement? The ICN’s Framework on Competition Agency Procedures
Ian Giles Richard, very good to see you again. Today, interesting topic, so in the world of competition law now we have 150+ regimes around the world, a lot of complexity, a lot of different standards, procedures, frameworks to how enforcement takes place. The ICN – International Competition Network – has  just published recently its Competition Agency Procedures (CAP) Framework which is attempting to help bring some convergence about in the approach of global agencies, which will be a really interesting topic for companies dealing with – well, with competition authorities around the world. First of all, what is the CAP and where did it come from? What’s the genesis?
Richard Whish QC Well, I think it’s interesting and one of the things that surprises me is just how quickly it has come into being. It originated with an idea in the States last year, the DOJ that was proposing a multilateral framework for cooperation and competition proceedings, and then from that the ICN picked up the baton and has now produced this Framework on Competition Agency Procedures. And, of course, historically this is the kind of thing that the ICN has done, because you’ve got the recommended practices on merger control and recommended practices now on competition investigations and this is another contribution that they’re making towards these convergence issues. So the Framework was adopted on 3 April of this year and it’s co-chaired by the ACCC from Australia, the BKA from Germany and the DOJ in the States.
Ian Giles
Yeah, and, just to look a bit more closely at it, what’s the Framework about? How’s it supposed to work?
Richard Whish QC
Well yes, the idea is that there are a certain set of principles that one would want to see respected in competition enforcement and the principles, which we’ll talk about in a moment, as set out in an annex, but what the document basically does is to propose a cooperation process and a review process, so cooperation, the competition authorities would subscribe to the Framework and then they would – I’m quoting here – “Participants will engage in the dialogue in good faith, according full and sympathetic consideration to the issues raised in a mutually convenient manner compatible with their respective laws and in light of the need to effectively enforce such laws” – so that’s the cooperation process. Then the review process is that they would produce a template, country-by-country, explaining how that system of competition law conforms with the principles in question. Those templates would be submitted to the ICN and in due course would go on to the ICN’s website and become a public good, which I think is a very good idea.
Ian Giles
And so if we turn to the principles, there’s a broad range of stuff there.
Richard Whish QC
Yes.
Ian Giles
And when you think about how this is going to work in practice with each authority that – I think 62 authorities have already signed up to this – each authority filling in a template to explain how they have – how their laws show that there’s no discrimination, or there’s transparency and predictability, how do you see that working and what do you think are the really important features of this process?
Richard Whish QC
Well, I mean, the principles are set out in the annex and they are, for example, non-discrimination, transparency, predictability, investigations should be conducted within a reasonable time period, confidentiality should be respected etc, etc. I won’t read out the entire list but some of them obviously are extremely important, I mean, non-discrimination for example. I’m an overseas company, I want to know that when I go to Ruritania or Suburbia that the authority there is going to apply its law in exactly the same way to me as it would have applied to an indigenous company, and then authorities will have to report within the template as to the extent to which, or the ways in which, they conform with the principles.
Ian Giles And this, I mean, it goes really to this question of how best to try and make competition authorities converge their approaches...
Richard Whish QC Yes.
Ian Giles
Soft convergence versus hard convergence...
Richard Whish QC
Yes.
Ian Giles
And you feel there’s really some teeth to making people publicly report?
Richard Whish QC
Yes, it’s very tempting, especially when one is a lawyer, to assume that you have to have hard convergence, that is to say that people will only do things if it’s mandated by law. It’s very easy to believe that that’s the case but I would say in my own career – and I’ve watched this very closely – I have been fascinated and very pleased to see the extent to which there has been soft convergence, in relation to all sorts of matters in competition law and policy. And I think that conducted properly and with good will and so on and so forth, I can imagine how, apart from anything through peer group pressure, this will cause convergence to happen. It’s not going to be perfect, of course, it’s not going to happen overnight, but it will have an influence, I’m sure.
Ian Giles
Ok, so a lot of positives to be taken from this. I think, I mean, the things that people look for, for example, alignment of timelines...
Richard Whish QC
Yes.
Ian Giles
Things that are in primary legislation will be more difficult.
Richard Whish QC
Yes.
Ian Giles
But convergence of approach, more broadly I think we can take some positives.
Richard Whish QC
Well, I think that’s right and, of course, you have to remember that in some cases, you know, just take time periods, whether it’s cartel investigations or whether it’s merger control, legal systems are very different.
Ian Giles
Yes.
Richard Whish QC
With cartels, I mean, apart from anything, does one have an administrative system as in the EU model and the UK at the moment (who knows about the future)? It’s a very different system from a prosecution model so it’s very difficult to harmonise timelines in those circumstances.
Ian Giles
So there will still be things for companies to wrestle with?
Richard Whish QC
Of course.
Ian Giles
But, anyway, thank you very much Richard, that’s really interesting.