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14 Due Process in Competition Law Proceedings: Practical Considerations of a Consensus Awaiting Convergence

Paul O’Brien

From: Antitrust Procedural Fairness

D. Daniel Sokol, Andrew T. Guzman

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 27 September 2022

Fair, reasonable, and non-discriminatory terms (FRAND) — Unfair trading conditions — Basic principles of competition law — Enforcement and procedure

This chapter first discusses how due process has attracted increased attention in international competition law dialogue. This can be attributed to three factors: the globalization of antitrust, the spotlight that has put on procedural differences, and an evolution of the nature of the discussion of due process and the perceived value to agencies in promoting sound outcomes. The chapter then asks whether there is consensus on appropriate process for competition proceedings. Competition agencies operate within different legal systems and traditions, with different organizational structures and different procedural rules. Are these differences significant, perhaps insurmountable, hurdles to consensus on common procedural practices? It argues that that the answers depend on the following: (1) high-level commitments to the importance of due process; (2) agreement on basic pillars or principles of due process; and (3) agreement on a set of specific practices that all agencies should implement to ensure due process.

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