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The Justice Department and its international counterparts are close to unveiling a new framework of procedures for antitrust investigation and enforcement, in a move to encourage better corporate compliance through stronger procedural fairness, Justice Department antitrust chief Makan Delrahim said June 1.
“Our shared vision is a multilateral framework that is open to all competition authorities, reflects fundamental due process recognized by almost every competition authority, enhances and extends the work of international organizations, and incorporates meaningful mechanisms to secure compliance, " Delrahim said at an event at the Council on Foreign Relations in Washington.
With more than 140 competition agencies across the world, each separately reviewing pending merger transactions and investigating anticompetitive practices, it is “critical” that there are shared principles as to how investigations are conducted, Delrahim said.
The global framework, titled the Multilateral Framework on Procedures in Competition Law Investigation and Enforcement (MFP), will be finalized next week in Paris.
The DOJ’s announcement comes amid concerns about the rapid growth of new antitrust enforcers globally.
Mergers have become a “monstrously complex” process, Tad Lipsky, an antitrust professor at George Mason University law school, told Bloomberg Law in an April interview. The merger enforcement system is one that “is struggling with this huge mismatch between the global character of many of these transactions and the local regulations,” Lipsky said.
Maureen Ohlhausen, outgoing commissioner of the Federal Trade Commission, noted the increase in competition agencies globally during her 2016 testimony before the House Judiciary Committee. “Enforcers in these jurisdictions operate in a wide variety of legal, economic, and political contexts,” she said. " As a result, approaches to the enforcement of competition laws vary, sometimes significantly, around the world.”
The MFP will set common principles when it comes to due process commitments regarding transparency, time resolution, confidentiality, conflicts of interest, proper notice, opportunity to defend, and judicial review, Delrahim said.
The DOJ, along with a dozen competition committees, reviewed multiple competition chapters in major trade agreements, as well as guidelines and recommendations on procedural fairness from the Organisation for Economic Co-operation and Development (OECD) and International Competition Network (ICN) to draft the framework’s principles.
The DOJ is not compromising on its values through this process, but instead working to identify values that are mutually respected by most competition authorities, Delrahim said.
The framework will not be a formal and binding process but rather will “ensure that we all have sufficient incentives to comply with the common commitments,” Delrahim said.
The DOJ wants all 140 competition commissions to sign the framework. Delrahim said he would likely question agencies choosing not to join.
Commissions who refrain from signing onto the framework would send the wrong signals and likely raise future “reputation concerns,” he said.
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