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3 Procedural Fairness in Antitrust Enforcement: The U.S. Perspective

Christopher S. Yoo, Hendrik M. Wendland

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) — Abuse of dominant position — Unfair trading conditions — Basic principles of competition law — Enforcement and procedure — United States

As the first country to enact an antitrust law, the United States has enjoyed the greatest opportunity to develop its enforcement practices. This chapter first introduces the key antitrust enforcement institutions. It then explores the manner in which the United States implements four key procedural protections to provide insights into ways to improve US law. These are legal representation, notice of legal basis and evidence, engagement between the parties and the investigative staff, and internal checks and balances and judicial review. It is argued that a properly functioning system of antitrust enforcement depends on more than just well-designed substantive principles. It also requires enforcement procedures that enhance accuracy, ensure fairness, promote confidence in the overall system, and prevent abuses of power. US law attempts to accomplish these goals through the four key procedural protections mentioned above. The situation in the United States also shows that procedural rules must have some flexibility to accommodate the institutional differences between the Federal Trade Commission and Department of Justice.

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