Promoting procedural fairness through the ICN

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Engagement in multilateral dialogue and consensus building is a cornerstone of the FTC’s international antitrust program, and our active involvement in the International Competition Network (ICN), a collaborative network of antitrust agencies from 111 jurisdictions around the world, is at the heart of this work. The FTC is a founding member of the ICN and serves on the ICN’s Steering Group. In past years, we have chaired the ICN’s work on merger notification and procedures as well as its initial work related to the analysis of unilateral conduct. In both instances, the FTC led ICN efforts to create international best practices on merger notification rules and the assessment of dominance. Currently, I co-chair the Agency Effectiveness Working Group (AEWG), one of the ICN’s five substantive work streams. The AEWG is devoted to the study of agency strategy, planning, operations, and investigative tools and procedures.

On March 25, the International Competition Network held a one-day Roundtable on Investigative Process at the FTC, and organized under the auspices of the AEWG. The FTC and the DOJ’s Antitrust Division hosted the event. The Roundtable focused on discussion of how different investigative practices can enhance the effectiveness of agencies’ decision-making and ensure the protection of procedural rights. 115 agency and private sector participants from 35 jurisdictions attended the Roundtable. FTC Chairwoman Edith Ramirez and Bureau of Competition Director Deborah Feinstein addressed the Roundtable. Chairwoman Ramirez stressed the benefits that investigative transparency and engagement can bring to agencies in the form of more informed and efficient investigations. Director Feinstein outlined FTC investigative practices that help to ensure effective decision making.

The Roundtable was a part of the ongoing ICN’s Investigative Process Project, co-led by the FTC and the European Commission’s DG-Competition. The premise of the Project is that effective competition enforcement depends on investigative procedures that promote fair and informed enforcement actions. The Roundtable covered the transparency of agencies’ investigations, opportunities for parties to engage with the agency, and protection of confidential information across all enforcement areas. The Roundtable featured sessions that used a sample investigative timeline to frame the discussion of investigative practices that promote transparency and predictability, facilitating effective engagement and interaction between agencies, parties, and third parties.

Such exchanges among competition agencies and between agencies and the private sector are important to fostering understanding about effective investigative practices. When competition investigations are fair – and perceived to be fair – and provide for the information necessary to analyze the conduct at issue, they bolster the legitimacy and impact of enforcement as well as ensuring the rights of parties. Through this ICN project and in other relevant international fora, the FTC is a leading voice for strong procedural fairness standards that serve as models of good practice for all competition agencies.

Later this month, the ICN will hold its thirteenth annual conference, hosted this year by the Moroccan Competition Council. Chairwoman Ramirez will attend the conference and will be a panelist in the plenary discussion of international cooperation on merger review. Effective competition agency investigative process and procedural fairness also will be key topics of discussion at the conference during the AEWG’s showcase panel and group breakout discussions, organized and led by the FTC. More broadly, the conference will highlight a range of ICN accomplishments over the past year embodied in new ICN work product on topics such as international merger enforcement cooperation, confidentiality protections during investigations, competition advocacy, leniency waivers, and recommendations related to predatory pricing analysis.

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