International Competition Network Adopts Guiding Principles for Procedural Fairness and New Recommendations for Merger Review

The International Competition Network (ICN) held its 17th annual conference, hosted by the Competition Commission of India, on March 21-23, 2018. Nearly 500 delegates from more than 70 jurisdictions participated, including competition experts from international organizations and the legal, business, academic, and consumer communities. Acting Chairman Maureen Ohlhausen and Deputy Assistant Attorney General Roger Alford of the Department of Justice’s Antitrust Division led the U.S. delegation.[1] The conference showcased the achievements of the ICN working groups on competition advocacy, agency effectiveness, cartels, mergers and unilateral conduct, and featured discussion of current competition issues and the future direction of the network.

“The ICN continues to play a critical role in addressing evolving issues and challenges that confront the international competition community,” said FTC Acting Chairman Maureen Ohlhausen. “As exemplified by this year’s work product on merger review and procedural due process, work that was led by the FTC, there has been substantial progress toward convergence of competition policy around the world.”

“The Division looks forward each year to this opportunity to engage face to face with enforcer colleagues from around the world,” said Assistant Attorney General Delrahim. “The relationships that we develop through ICN are key to our enforcement program, and to promoting sound competition policy worldwide. We commend the Competition Commission of India for hosting an excellent conference.”

Acting Chairman Ohlhausen helped lead the conference’s panel discussion of how competition authorities can communicate the benefits of competition and advocate for pro-competitive policies when the political, social, or economic context is not in their favor. The panel explored how advocacy strategies may differ and recognized that competition advocacy, whatever the context or climate, is a crucial component of a competition agency’s work. Randolph Tritell, Director of the FTC’s Office of International Affairs, led the concluding panel, showcasing the implementation of the ICN’s work across the globe.

Deputy Assistant Attorney General Alford spoke on a panel discussing online markets and vertical restraints. The panel was part of the Unilateral Conduct Working Group’s ongoing work on vertical restraints. The Working Group, co-chaired by the Department of Justice, presented an interim report examining a series of hypothetical vertical restraints and their effect on competition and potential resulting efficiencies.

The FTC co-chairs 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 revised Recommended Practices on: 1) international enforcement cooperation; 2) timing of notification; and 3) review periods. The working group also presented results of its agency survey on vertical merger analysis and related economic assessment.

The Agency Effectiveness Working Group produced new recommendations on due process in competition law enforcement. The FTC-led project developed Guiding Principles for procedural fairness, recommendations for internal agency practices that support sound decision making, and implementation tips for good agency enforcement process. The group also studied how economic thinking and economic analysis can be incorporated into agencies’ investigations and decision-making processes. The working group introduced new video training modules on merger remedies and enforcement cooperation as part of the ICN’s online interactive educational center for competition authorities from around the world.

The Cartel Working Group addresses the challenges of anti-cartel enforcement, including the prevention, detection, investigation and punishment of cartel conduct. The Cartel Working Group presented an interim report on survey findings regarding major characteristics of leniency regimes, incentives and disincentives for leniency applications and interaction between leniency and other policies.

The Advocacy Working Group provides guidance and facilitates experience-sharing to improve the effectiveness of ICN members’ competition advocacy initiatives. At the conference, the group released its second report as part of the Strategy Project. The report analyzes survey results on how competition agencies assess their advocacy actions and programs, and identifies common practices and trends. This work will inform the development of guidance covering the planning, monitoring, and evaluation of advocacy actions and programs. The working group also expanded the Market Studies Information Store, which now includes over 700 market studies conducted by member agencies, and facilitates knowledge-sharing, collaboration, and best practices in market studies.

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 members including the FTC and the Department of Justice’s Antitrust Division, has grown to 138 member agencies from 125 jurisdictions, supported by a wide network of non-government advisors from around the world.

[1] Assistant Attorney General Makan Delrahim had planned to attend, but was required to remain in Washington due to the litigation schedule in a Division matter.