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Will the ICN’s new global framework improve procedural fairness for businesses?
Global | Publication | April 2019
One of the most significant challenges facing companies dealing with the proliferation of global competition regimes is inconsistencies in approach, timelines, and potential double jeopardy from facing sanctions in multiple jurisdictions. In this context, the International Competition Network (ICN)’s announcement of a new set of principles on April 5, 2019 with a view to making antitrust enforcement across jurisdictions more transparent, predictable and consistent is a welcome development. More than 140 jurisdictions now have antitrust regimes, and the ICN provides a forum for these agencies to discuss developments and consider best practice.
As above, the global expansion of competition regimes in recent years means companies must navigate an increasingly complex range of rules and procedures across countries depending on where their activities trigger filing requirements or investigations. With concerns expressed in respect of the transparency and fairness of some of the newer enforcers (including the potential for certain regimes to use antitrust laws to favor domestic companies), the growing demand for harmonization may now be bearing fruit. However, how effective these suggested changes are in practice remains to be seen.
The new principles feature several elements
Although the ICN initiative has been driven by a desire for stronger procedural protections in newer antitrust regimes, it is worth noting that established regimes remain imperfect. The UK’s Competition and Markets Authority, for example, has recently been successfully challenged by parties to a high profile retail merger for imposing an unfair timetable for responses. Similarly, cartel investigations by established enforcers such as the European Commission typically take several years to conclude, and this is likely to remain the case.
Proposals for the framework were initially led by the US Department of Justice (DOJ)’s Antitrust Division. The Assistant AG, Makan Delrahim, announced in June 2018 that the Antitrust Division had been in negotiations with other leading enforcers to establish a ’Multilateral Framework on Procedures in Competition Investigation and Enforcement’. While that initiative garnered support, many stakeholders, not least the European Commission, were dubious about the effectiveness of unilateral US attempts to introduce new global standards. The new ICN framework represents a broader consensus among leading agencies, which it is hoped will mean its suggestions are more closely observed.
These new principles – formally the Framework on Competition Agency Procedures (CAP) – were unanimously approved by the ICN’s Steering Group on April 5, 2019, and received widespread endorsement from global business on April 10, 2019, notably from the International Chamber of Commerce, the Association of Corporate Counsel, the Association of In-house Competition Lawyers and the US Council for International Business. The DOJ is believed to have engaged with more than 50 competition authorities in developing its original framework, and the fact the CAP has been approved in record time is a positive signal.
To opt in, authorities are required to submit information about their investigation and enforcement procedures to the ICN in line with the 11 principles below
While this initiative represents a huge step towards improving antitrust enforcement for businesses, consumers and regulators across jurisdictions, its ultimate success depends on which authorities opt in to improving their procedural safeguards.
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Nina Varumo is a freelance portrait and documentary photographer based in Stockholm. A recent project of hers Kvinnor till sjöss (‘Women at sea’) is on ongoing photo series highlighting the working life of female seafarers in order to change the stereotypical image of what and who is a seafarer.
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