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Antitrust Procedural Fairness by Sokol, D Daniel; Guzman, Andrew T (24th January 2019)

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From: Antitrust Procedural Fairness

D. Daniel Sokol, Andrew T. Guzman

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From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 24 April 2019

(p. 255) Index

Abbott, Kenneth 17
abuse of dominance 15
proposed extension of private rights to cover 203, 207, 213, 217
ACCC (Australian Competition and Consumer Commission) 181–96
challenges to decisions 185–88, 196
communication with parties 190–91
consultation with third parties 194–95
criteria for merger authorisation 188–89
guidelines 183–84
informal review procedure 182–83, 195–96
information gathering process 191–93, 196
public accessibility 183–84, 190
transparency requirements 190
accountability (in Canada) 198–99, 201–6
of Bureau to courts 203–5, 208
in civil cases 202–5
in criminal cases 202
discrepancy of theory and practice 204
feedback loops 205–6
administrability 11–12
administrative fines (Japan) 131–40, 145, 146, 147
determination of amount 134, 135
enlargement of eligible categories 138
introduction 131, 132
leniency framework 134–35, 143, 146
multipliers 134, 135, 146
non-discretionary feature 135, 136, 146, 147
non-sanctioning feature 132–33, 135
objections to 132, 136
procedural restraints 133
procedure for issuing orders 135–36
proposed reforms 145–46
restraints on 132–33
terminology 132–33
theoretical changes 135
Administrative Law Judge (ALJ, US), role of 38, 43–44
independence from authorities 44
Alford, Roger 8, 246
American Bar Association, ‘Best Practices for Antitrust Procedure’ 6, 31–32, 237, 240–41, 250
Anti-Monopoly Law (AML, China) 71–73
administrative provisions 75–78
passage 71
responsibility for enforcement 71–72
antitrust
assessment of national systems 18–19
Brazilian system, evolution of 165–68
Chinese system 75–82
evolution of law 1
future directions 228–29
global agreements 17
global attitudes 219
global powers 2
globalization 231
judicial vs. administrative models 221–22, 225–26
literature 13–14
national variations 220
role of procedural fairness 4–5, 14, 32
separation from other legal regimes 166 see also antitrust agencies
antitrust agencies 14, 21–22, 221–26
benefits of due process 232–35, 243
global variations 228–29
judicial vs. administrative models 221–22, 225–26
preference for soft law 17, 22
procedural imperfections, potential counterbalancing 228
public statements/sector inquiries 222
review of decisions 44–45
short-term thinking 22
Antitrust Effectiveness Study 23
appeal(s)
in Brazil 172, 178
in Canada 202–3
in EU 63, 76, 120–21
in Hong Kong 120–21
in India 148
reduction in number 12
in US 43–44
ASEAN (Association of Southeast Asian Nations) 31–32, 238
(p. 256) Asia, procedural fairness in 10, 21–22, 115–16 see also names of countries
attorney-client privilege see legal professional privilege
Australia, merger law 3, 181–96
challenges to decisions 185–88
criteria for authorisation 188–89
enforceable undertakings see separate main heading
formal authorisation 181, 182–83, 184, 187, 188–89
informal clearance 181, 182–83, 195–96
judicial review 185–86
merits review 187
remedies 181–82, 184
third parties 193–94
transparency/due process issues 184, 190, 195–96
voluntary notification regime 182–83 see also ACCC
Baer, Bill 8
Berkowitz, Daniel 13–14
best practices (in procedural fairness) 16–25
development of global framework 6–7, 22, 31–32, 240–42
failure to articulate 20
hard law 16–17
inexperience in implementation 13–14
soft law 17–21, 249
Brazil 3, 165–79
adversarial system 170–71
authorization of searches 175
checks and balances 175–78
Competition Defense System 167
constitutional principles 166, 168–69, 170–72, 175, 179
engagement with parties 175
evidence production 171
evolution of antitrust regulation 165–68
foreign counsel 173–74, 179
full defence, right of 170–71
guarantee of transparency 171, 179
implementation of international treaties 172
Institute of Studies of Competition, Consumption and International Commerce (IBRAC) 176
judicial review 175–78, 179
justification requirement 171
legal representation 173
National Secretariat of Economic Law 166–67
notification of accused 174
“pay to challenge” system 178, 179 see also CADE
burden of proof 125
CADE (Administrative Commission for Economic Defense, Brazil) 166–68
administrative proceedings 170–78
annulment of decisions 170, 171, 176–77
application of constitutional principles 170–72, 179
challenges to decisions 176–77, 178, 179
confidentiality, circumstances permitting 171, 174
creation 166
engagement with parties 175, 201
internal regulation 172–78
investigative powers 167
justification requirement 171, 176
predecessor (also CADE) 166
public accessibility 171, 174
quality of work 167–68, 179
relationship with courts 176
restructuring 167
Canada 3, 198–218
accountability concerns 198–99, 201–6
appeal rights 202–3
calls for reform 198–99, 208
checks and balances 198
civil cases 202–5, 210
Commissioner of Competition 198–99, 234–35
criminal cases 202
decision not to prosecute 202
engagement with parties 198, 201
‘feedback loops’ 205–6
(lack of) case law 198, 205, 206, 208, 211, 212
legal representation 198, 199–200
notification of parties 198, 200
Public Prosecution Service 202
transparency issues 208, 209, 211–12
Canadian Competition Bureau 198–99
accountability 203–5, 208
checks on, via private action 208–9
disclosure obligations/practices 200
engagement with parties 201
engagement with public 201
(exclusive) powers 207–8
frustration with Tribunal decisions 205
(p. 257)
lack of legal force 202–3
parties’ reluctance to engage with 206
stake in outcome 212
tendency to increased secrecy 200, 201
Canadian Competition Tribunal 199, 202–3
cumbersome nature of process 204
(lack of) case law 198, 205, 206, 208, 211, 212
(lack of) experience/expertise 205–6
potential for improvement 216
membership 205, 206
private complaints to 207
review of merits 202–3, 207
unusual structural features 202–3
Carroll, Lewis, Alice’s Adventures in Wonderland 4
cartels
best practices 22
case law 132, 155–56
enforcement 18
illegality 103–4, 132–33, 226
standard of proof 124–25, 127–28
cease-and-desist orders 132–33, 135–36, 203–4, 207
Chamber of Commerce (US) 23, 74, 221, 227
practitioner surveys 227–28, 247–48, 250–51
checks and balances 3
in Brazil 175–78
in Canada 198 see also accountability
in China 80–81
in EU 61–68
global failings 227
importance of 42
in US 42–46
China 3, 10, 71–85, 219–20
antitrust procedural rights 75–78
appeal rights/procedure 76
checks and balances 80–81
competition authorities 71–72, 85 (see also MOFCOM; NDRC; SAIC)
competition legislation 72 see also Anti-Monopoly Law
due process concerns 10, 74, 84–85
engagement between parties and authorities 79–80
filing procedure 75
global significance 76
investigative procedure 75
judicial review, rarity/underdevelopment 80–81
merging of agencies 85
notification requirements 77–79
procedural issues 73–74, 78–81
procedural obligations 75–76
State Administration for Market Regulation 85
State Council Provisions on Thresholds for Prior Notification 77–78
suspension/termination of investigation 76
time limits 78
transparency issues 10, 73, 74, 81–82, 83–85
(limited) improvements 81–82, 83, 85
“civil servants,” defined 103–4
CJEU (Court of Justice of the European Union) 50, 63–65
Court of Justice, jurisdiction 63
deference to Commission 63–64, 65–66, 68–69
General Court, jurisdiction 63, 65–66, 120–21
manpower 65
College of Commissioners (EU) 60, 61
decision-making procedure 62
political nature 62, 65
commitments procedure (EU) 49–50, 54, 57, 61, 63–64, 66–68
benefits 67–68
Commission’s bargaining power 68–69
increased use 66
process 66–67
proposed introduction in Japan 147
common law, standards of proof 126–27
compensation 208–9, 210
competition
global adoption of laws on 231
global agreements 16
competition authorities
dominance in ICN 19–20
illusion of superiority 20 see also names of national bodies
Competition Commission of India (CCI) 148–64
decision-making process 162–63
failure to adhere to principles 149, 152, 155–56
failure to hear interim applications 158
guiding principles 149, 162
jurisdiction 148
(lack of) engagement with parties 155–56
lack of transparency 151, 155
multiple roles 148–49
notice of investigation, failure/no obligation to provide 150
publication, obligations/restrictions 151, 154–55
signing off of orders 155–56
structural model 148–49
uncertainty over correct procedure 157
(p. 258) Competition Commissioner (in EU) 57, 58–59, 62
role in oral hearings 58, 59
Competitive Impact Statements (CIS) 36, 38
compliance 24–25
lack of 24–25, 113–14
mechanisms to ensure 99–100
confidentiality 223–24
global failings 227
permissibility 171, 174
contracts
analogy with FTAs 24
consequences of breach 24
costs, reduction in 11–12
criminal proceedings
in Canada 202
cases classified as 123–25
competition cases distinguished from 126
decision not to prosecute 202
global variations 226
levels of penalties 124, 128
standard of proof 123–25
in US 226
cross-examination 96, 224
benefits/pitfalls 224
circumstances most requiring 224–25
denial of opportunity 151–52
prohibited 59–60
curative principle (Hong Kong) 123
damages, as remedy
actions for 62–63, 67, 210
calls for increased availability 198, 199, 209, 213
incidental benefits 216
potential/restricted availability 202, 207
relationship with deterrence 215
relationship with tribunal expertise 216
unavailability 203–4, 207
dawn raids 222
defence(s)
full, right of 170–71
preparation 36–37 see also legal representation
delays, prevention of 7
Department of Justice (US) 7–8, 148–49, 237
Antitrust Division Manual 34, 39, 41, 45
checks and balances 45–46
civil proceedings 36, 38–39
compared/contrasted with FTC 34, 36, 38, 46, 47, 226
consultation procedure 45–46
criminal investigations 36, 39, 41–42
disclosure obligations 38
engagement with parties 41–42
grand jury proceedings 36, 39, 42, 45–46
internal checks 46
judicial oversight 46
legal representation 34, 36
notice of legal basis 38–39
publication of documents 41–42, 46
deterrence 128–29
enhancement 209, 234–35
impact of private law 208–9, 212, 213, 214–15, 216
link with transparency 215
under- vs. over- 209, 210, 212, 216
DG Competition (Directorate-General of Competition, European Commission) 49
discretionary issues 10
lack of transparency 9
opposition to ICN 20–21
procedural fairness issues 9–10, 21–22, 25
pronouncements on due process 234–35, 237
proposed reorganization 69–70
stakeholder survey 9–10 see also DG Competition senior management
DG Competition senior management
meetings with 57
presence at oral hearings 59
presence at state of play meetings 57
disclosure
ambivalent attitudes to 200
exemptions 56, 95
obligations on authorities 38, 55, 78–79, 113–14, 200
responsibility for decisions on 52
documents see evidence
dominance 10 see also abuse of dominance
double jeopardy 132–33
due process 4, 230–50
in Australia 182, 184, 190–91, 195–96
benefits of 11, 12, 48, 88, 232–35, 248, 249
and Brazilian Constitution 170–72
and Brazilian regulatory proceedings 172–78
centrality of engagement with parties 223
challenges to development of consensus 242–46
(p. 259)
in China 10, 74, 84–85
consensus on importance 236, 250
consensus on key elements 236–38, 244, 250
convergence: difficulty of 245
moves towards 239–40, 244, 248–49, 250
objections to 244, 246
definition(s) 230
dependence on type of proceedings 226
development of common practices 239–42
differing standards, as positive feature 244–45
discrepancy of theory and practice 248, 250
emergence as topic in own right 232–35
in EU law 48, 60
future directions 228–29, 230, 248–49, 250
global significance 231–35, 236
guidelines on common practices 240–42
guiding principles 232–35
in high-profile cases 15
identification of common pillars 236–38, 244
moves towards consensus 235
national/jurisdictional variations 235, 244–45
practitioners’ views, worldwide 247–48, 249
pronouncements by senior officials 237–38, 243, 244
public concerns 14, 60, 223
relationship with institutional design 243
(risk of) bias in favour of investigated parties 246
soft-law approach 249
striking of balance 228
in US 34
effective judicial protection, principle of 118–23
difficulty of fulfilment 118–19
and human rights 122–23
implementation in EU 120, 122–23
possibility of fulfilment 119–20
enforceable undertakings (in Australian merger law) 182, 184
benefits 184–85, 191
breach of 188
challenges to decisions on 186, 187
direct challenges to 188
impact on third parties 193–94
negotiation process 189–91
procedural issues 185
refusal to accept 188
engagement (between parties and authorities)
in Brazil 175
in Canada 198
centrality to due process 221, 223
in China 79
in EU 57–60
global concerns 223, 247–48
in Hong Kong 116
in India 82–85
restrictions/prohibitions on 98–99
in Taiwan 98–99, 103–4
in US 39–42
European Commission 3, 49–69, 220
accessible files 55–56
adoption of decisions 60
attempts to improve system 69
basis of decisions 54–55
Best Practices Package 69
checks and balances 61–68
prior to adoption of decisions 61–62
commitments procedure 49–50, 54, 57, 61, 63–64, 66–69
communication with parties 49–50, 53–57
compared with Hong Kong system 120–21
competence 68
complaints addressed to 54, 62–63
composition 49
criticisms 60, 61, 63, 68–70
decision-making procedure 62, 65
disclosure obligations 55
discontinuation of proceedings 53–54
due process guarantee 232–33, 234–35
due process issues 60
enforcement procedures 49
grounds for inspection 53
inaccessible files 56
institutional design 62
investigatory powers 49–50, 53
judicial review 63–65, 68–69
languages 56–57
legal representation 50–53
legality of decision, challenges to 63, 64–65
Manual on Antitrust Procedure 69
margin of appreciation 50, 63–64, 68–69
materials not included in case file 56
as model for other jurisdictions 148–49, 200
multiple legal roles 49, 60, 61, 68, 120–21
opening of proceedings 53–54
(p. 260)
peer review panels 61–62
procedural issues 7, 9–10, 60
requests for suspension of decisions 62–63
review of decisions 50
role of case team 60
Statements of Objections (SOs) 54–55, 56
third-party submissions 54
European Parliament 52
European Union 48–69
competition law, development/model 49
Courts see CJEU
enforcement procedures 49
procedural issues 7, 9–11, 12, 60
strong points of system 57, 68–69
evidence
denial of access to 95, 101, 104–6, 223
disclosure of 78–79, 95
gathering of 78–79
prosecutorial vs. administrative systems 115–16
refusal to provide/investigate 95, 104–5
(required) quality of 129
restrictions on access to 153–54, 223
right of access to 95, 113–14, 115–16, 175
right of examination 96–98
selection bias 223
sharing of 3 see also expert witnesses
executive branch, interference in legal process 13
expert witnesses 58–59, 103–4
fair hearing, right to 1, 48, 101–2
Federal Trade Commission (FTC, US) 7–8, 20–21, 48, 148–49, 225, 226, 237
administrative proceedings 35, 38, 40–41
appeal procedures 43–44
checks and balances 42–44
civil proceedings 35, 37–38, 40–41
compared with DOJ see under Department of Justice
engagement with parties 40
external review 44
“hard look review” 44–45
legal representation 34–35
notice of legal basis 37–38
Operating Manual 34–35, 42–43
fines
Court review/adjustment 65–66, 91–92
determination of amount 91–93, 128–29
maximum 65–66, 128–29, 158
payment of covering deposit 178
payment procedure 62–63
foreign lawyers
defined 95
language difficulties 84
qualification for local status 115
(restrictions on) appointment 95, 115, 173–74, 179, 199–200
Forrester, Ian S. 9–10, 59–60, 62
Fox, Eleanor M. 168–69
free trade agreements, bilateral 23
analogy with contracts 24
General Court (EU) see under CJEU
German legal system, influence in Taiwan 104–5, 107–8
Gidley, J. Mark 13–14
Global Investigations Review 238
hard law 16–17
augmenting of soft law 23–24
defined 16
harm, theories of 223, 224, 237
Hayek, F.A. 109
Hearing Officers (in EU) 52
conduct of hearing 58
expansion of mandate 69
identity 58
interim/final reports 60
limitations on powers 58–60
high-profile companies 14–15
Hong Kong 3, 112–30
access to documentation 113–14, 115–16
case law 117–30
shortage of 112–13
civil vs. criminal cases 123–24
Communications Authority 117–20, 123–24
compared with EU regime 120–21
competition legislation 112–16, 130
Competition Tribunal 116
courts’ jurisdiction 118–19
curative principle 123
effective judicial protection, requirement of 118–23 see also separate main heading
(p. 261)
engagement between parties and authorities 116
foreign lawyers 115
judicial review 116, 117–19
lacunae in legal provisions 112
legal representation 113, 115
newness of regime 112
penalties 124, 128–29
procedural issues 112
prosecutorial system 115–16, 123
standards of proof 123–30
Hong Kong Competition Commission 237
engagement with parties 116
investigative powers 113–14
(limited) case load 112–13
human rights 122–24
Hyman, Maxwell 13–14
Iacobucci, Edward 198–99, 205, 208
ICC (International Chamber of Commerce) 6, 31–32, 231, 234–35, 239
Discussion Paper on Effective Procedural Safeguards 240–41
Recommended Framework for International Best Practices 240–42, 250
ICN (International Competition Network) 1, 17–18, 19–21, 31–32, 83, 249
Agency Effectiveness Working Group 21
dominant voices within 19–20
future directions 21
Guidance on Investigative Process 20–21, 236, 240–42, 243, 247, 250
internal tensions 20–21
operating procedure 19
Recommended Practices for Merger Notification and Review Procedures 239–40
Report on Procedural Fairness 20
role in development of best practices 20, 21–22
imprisonment 128
inconsistency, problem of 228
India 3, 148–64
access to files 153–54
change of regulatory body 148, 164
compared with UK system 163–64
Competition Appellate Tribunal (COMPAT) 148, 149, 151–52, 153–56, 159, 161, 162, 164
cross-examination, applications/opportunities for 151–52
decision-making stage 155–58
Director-General, office of 148, 150, 151, 152–55
individual liability 158, 160–62
investigation stage 150–54
lawyers’ presence at hearings 152–53
National Company Law Appellate Tribunal (NCLAT) 148, 164
National Competition Appellate Tribunal (NCALT) 148, 149
penalties 158–60
individual liability 158, 160–62
information asymmetries 11
benefits of reduction 11
information technology 15
injunctive relief 203–4, 210
innocence, presumption of 125
inquisitorial principle 108–10
insider dealing 125–26
institutional design 14, 44, 219–29
European Commission, unique features 62
relationship with due process 243
intellectual property 17
interim applications, no hearing given 158
Irish Competition Authority 237
Japan 3, 131–47
administrative fines see separate main heading
Advisory Panel on Administrative Investigation Procedures 141–42
attorney-client privilege, restrictions on 143–44, 145, 146
attorney’s presence at inspections/interviews 142–43, 144–45
cease-and-desist orders 132–33, 135–36, 139–40
domestic politics/elections 138
double jeopardy 132–33
leniency framework 134–35, 143, 146
pre-order procedures 140–41
quasi-judicial hearings 135–36, 137, 143–44
repeal of legislation on 138–40
Japan Fair Trade Commission (JFTC) 132–37, 138–47, 219–20
Basic Issues Report 137
criticisms 137
debates on investigation procedures 141–42
increase in powers 134, 137
internal hearing procedure 137, 138–40
Investigation Procedures Guidelines 142, 145
(p. 262)
procedure for issuing orders 135–36
provision of information to firms 142
reduction in powers 138–40
referrals from 134
review of orders 139
Study Group Report 145–46
Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) 143–44
judicial review
absence 220
in Australia 185–86
in Brazil 175–78, 179
in China 80–81
crucial global role 226
deference shown to authorities 63–64, 65–66, 68–69, 104–6
EU/Hong Kong systems, compared 120–21
grounds for 63
in Hong Kong 116, 117–19
limitations on 54–55, 104, 186
partial/limited 63–64
scope of 63, 68–69
in Taiwan 89, 99–100, 104–6
in U.S. 42, 46
Keohane, Robert O. 18
Korea, antitrust regime 219–20
Lake Wobegon effect 20
law and development, literature of 13–14
Law Commission of India 154–55
legal basis, notice of
in Brazil 171
in Canada 198, 199–200
in China 83–84
in EU 53–57
global failings 227, 228
in India 150–51
in Japan 142
in U.S. 36–39
legal professional privilege
in EU 52
hazards of restricted provision 222
in Japan 137, 143–44, 145, 146
prohibition on 143, 145
proposed extension to counsel 52
legal representation 2
in Brazil 173
in Canada 198
in EU 50–53
in Hong Kong 113
in India 152–53
in Japan 142–43, 144–45
licensed vs. unlicensed 100–1
representatives’ qualifications 35, 36, 53
restrictions on right to 94
statutory guarantees 35, 36
in Taiwan 94, 100–1
in U.S. 34–36 see also foreign lawyers
legitimacy 12
and due process 234–35
improved, benefits of 12
and third parties 12
threats to 12–13
margin of appreciation 50, 63–64, 68–69
McSweeny, Terrell 8
mergers 181–96
immunity from private action 203, 207, 210
prior notification 138
procedures 18, 22, 102–3, 167, 181
prohibition 55–56
(proposed) extension of private rights to 213, 217–18
remedies 102–3
time-sensitivity 205, 217 see also Australia, merger law
merits review 187, 226
MOFCOM (Ministry of Commerce, China) 71–72, 75, 78–79, 83–84
dealings with foreign lawyers 84
dealings with other government authorities 84
engagement with parties 79–80
Guiding Opinions of the Anti-Monopoly Bureau 77–78
merging into single authority 85
seminars/consultations 82–83
transparency issues 83
natural justice, as guiding principle 149, 162
problems of definition 163
violations of 149, 152, 155–56
NDRC (National Development and Reform Commission, China) 71–72, 75, 78–79
case load 80
engagement with parties 79–80
Guidelines on the General Conditions and Procedures for Exemption of Monopoly Agreements 82–83
(p. 263)
local branches 80
merging into single authority 85
Provisions on Administrative Procedures 77
seminars/consultations 82–83
Nye, Joseph 18
Obama, Barack 8, 15
OECD (Organization for Economic Cooperation and Development) 17–19, 31–32, 221, 249
Competition Committee 18, 232, 240
reports on due process/transparency 19, 230, 236, 238, 243
role in development of best practices 21–22
use of peer reviews 18–19
officials, requirements of 6, 7
Ohlhausen, Maureen 8
oral hearings (in EU) 57, 58–60
criticisms 60
duration 59–60
interim report 60
limits to competence/allowable material 58–60
official presence 59
privacy 58–59
procedure 58
right to 58
staffing 58 see also Hearing Officers
overdeterrence see deterrence
Parker, Christine 191
peer review(s) 18–19
in EU 61–62
scope 19
penalties 158–60
civil vs. criminal 124, 128
determination 91–92, 104–5, 128–29
deterrent 128–29
lack of clarity 158–59
measures not classed as 102–3
proportionality 160 see also fines
pharmaceutical industry 15, 212–13
Pistor, Katharina 13–14
plea bargains 42
political pressure, bringing of 12–13
risks of, in EU 62, 65
safeguards against 14
predatory pricing 130
price-fixing, as criminal offence 202, 210
private rights of action (in Canadian law) 207–18
ambiguity of status 212
benefits (summarised) 213
calls for expansion/strengthening 198, 199, 207, 209–10, 213–18
check on Bureau 208–9
compromise features 210
concerns over cost/wasted time 210
current availability 203, 207, 216
deterrent impact 214–15, 216
frivolous claims 209
impact on transparency 209, 211–12, 214–16
motivations 208–9, 212, 214
probability of litigation 205, 211–12
relationship with deterrence 209, 212, 213, 216
relative stakes 212
restrictions on 203, 207, 212, 216–17
risk of overdeterrence 216
procedural fairness
areas of relevance 2
benefits of 11–13
defining components 7, 108
global context 5–15
global significance 11, 14–15, 112
impact on substantive arguments 2
national/jurisdictional variations 1–2, 6
negative impact on competition law 5
in prosecutorial systems 122
and rule of law 31–32
scholarship on 1, 108
trade-off with efficiency 122 see also best practices; due process; transparency
prosecutorial systems
benefits 122, 123
compared with administrative 115–16, 122
inefficiency 122, 123
procedural safeguards 122
Ramirez, Edith 8, 48
reciprocity 16
remedial measures 98
resource allocation 12
respondents
authorities’ contact with 37, 38, 39–40, 41
procedural rights 40–41
right of appeal 43–44
right of information 36–37, 38
right to counsel 34–35 see also defences
(p. 264) Richard, Jean-François 13–14
Roach, Kent 208–10
rule of law 31, 220
role of procedural fairness 31–32
rules, disclosure of 6
Russia, antitrust regime 219–20
SAIC (State Administration of Industry and Commerce, China) 71–72, 75, 78–79
case load 80
engagement with parties 79–80
local branches 80
merging into single authority 85
Procedural Rules 76–77
seminars/consultations 82–83
separation of powers, doctrine of 225–26
Snidal, Duncan 17
soft law 17–21, 249
benefits 17–18
coinage/definition 17
compliance with 24–25
consequences of violation 24–25
current global situation 21–23
future directions 22, 23–25
limitations 21–22
(potential) strengthening 23–25
as preferred medium 17
role in international relations/law 17
significant institutions 18–21 see also ICN; OECD; transgovernmentalism; transnationalism
South Korea 3
standard(s) of proof 123–30
‘beyond reasonable doubt’ 125, 202
civil, arguments for adopting 126–28
civil vs. criminal 123–26
default rule 125–26
exceptions to 126
distinguished from quality of evidence 129
relationship with probability 129–30
state of play meetings 57–58
bilateral 57
triangular 57–58
Statement of Objections (SO) 54–55
adoption 55–56
disclosure obligations 55
replies to 56, 57
Stragier, Joos 58
Structural Impediments Initiative (US/Japan) 132–33
Sutherland, Arthur E. 108–9
Taiwan 3, 88–110
access to evidence 95, 101
administrative process 89
areas of potential improvement 108–9
asymmetrical distribution of rights 100
competition legislation 89–92, 107–8
cross-examination principle 96
decision-making phase 97
determination of penalties 91–92, 98, 101–2
due process requirements 89–90, 99–100, 107–8, 110–11
examination of evidence 96–98, 101
factual/evidentiary issues 95–98
freedom of information 90
hearing procedure 96–97
implementation of legislation 94–100, 107–8
problems arising 100–6, 110–11
inquisitorial principle, application of 108–10
investigation procedures 92–93
jurisdiction 89
lacunae in legal provisions 101–3
legal representation 94, 100–1
mechanisms to ensure compliance 99–100, 104–6
policy implications 107–9
remedial measures 98
transparency requirements 89–90, 99–100, 107–8, 110–11 see also Taiwan Fair Trade Commission
Taiwan Fair Trade Commission (TFTC) 89
Courts’ refusal to overturn decisions 104–6
Notice for Holding Hearings 97
powers/obligations 92–93, 95–96, 97, 100
(restrictions on) contact with parties 98–99, 103–4
reversal of decisions 100
rules/guidelines 93, 97, 98
third parties
abuse of regime limitations 15
benefits for 233–34
and legitimacy issues 12
procedural fairness towards 193–94
right to be heard 194
submissions from 54
time limits
in China 78
in EU 58
Trans-Pacific Partnership (TPP) 147, 238
transgovernmentalism 18
transnationalism 18, 19
(p. 265) transparency 4
in Australia 182, 184, 190, 195–96
benefits of 11, 12–13, 88, 248
in Brazil 171, 179
in Canada 208, 209, 211–12 see also accountability
in China: lack of 10, 73, 74, 82–84, 85
(limited) improvement 81–82, 83, 85
dependence on type of proceedings 226
in the DG Competition 9
future directions 228–29, 233–34
ICN promotion of 20, 21
in India, lack of 151, 155
link with deterrence see deterrence
relationship with due process 234–35, 248
striking of balance 228
Transparency International 5–6
Trebilcock, Michael 198–99, 205, 208–10
triangular meetings see under state of play meetings
Trump, Donald 8
“turnover,” lack of clear definition 158–59
UNCTAD (United Nations Conference on Trade and Development) 236
underdeterrence see deterrence
United Kingdom
Competition and Markets Authority 128–29
Indian system compared with 163–64
penalties 128–29
standards of proof 126–27
United States 3, 31–47, 200
antitrust enforcement agencies 32–33
antitrust legislation 7–8, 32, 34, 35
areas of potential improvement 7–8
checks and balances 42–46
common law traditions 5–6
compared with other national systems 73, 148–49
definition of procedural fairness 7
differences between authorities 34, 47
due process guarantee 34, 232–33
enforcement procedures 46–47
engagement between parties and investigative staff 39–42
Federal Register 41–42
global influence 219, 221–22
grand jury proceedings 33, 36, 39, 42, 45–46
legal representation 34–36
notice of legal basis 36–39
plea bargains 42
procedural issues 7, 8, 10–11, 12
procedural regulations 34, 46–47
publication of documents 41–42
recommendations to international bodies 23, 219
rule of law, importance of 31
talks with Japan 132–33
Varney, Christine 8
Veel, Paul-Erik 210, 212–13
Wils, Wouter P.J. 58, 61
witnesses, legal representation 35 see also expert witnesses
Wong, Stanley 2
World Bank 5–6
World Trade Organization (WTO) 16–17
written responses/testimony, requirement of 58
Yeung, Karen 194–95
Zimmer, Daniel 122