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Oxford Law Citator
Contents
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Preliminary Material
Table of Contents
Table of Cases
Court of Justice of the European Union
European Court of Human Rights
National Cases
Australia
Brazil
Canada
China
Hong Kong
India
Japan
Taiwan
United Kingdom
United States
Table of Legislation
Australia
Brazil
Canada
China
European Union
Regulations
Decisions
Rules of Procedure
Hong Kong
India
Japan
Taiwan
United Kingdom
United States
Table of Treaties and Other International Instruments
List of Abbreviations
Contributors
Main Text
1 Introduction
References
2 The Case for Global Best Practices in Antitrust Due Process and Procedural Fairness
Preliminary Material
1 Introduction
2 Procedural Fairness in its Global Context
2.1 Procedural fairness issues around the world
2.2 Benefits of procedural fairness
2.3 Why procedural fairness has become a major issue
3 Global Best Practices
3.1 Hard law
3.2 Soft law
3.2.1 OECD
3.2.2 ICN
3.3 The current and future use of soft law in global antitrust
4 Conclusion
References
3 Procedural Fairness in Antitrust Enforcement: The U.S. Perspective
1 Introduction
2 The U.S. Antitrust Enforcement Agencies
3 Restricting Abuse—Four Essential Procedural Protections under U.S. Law
3.1 Legal representation
3.1.1 FTC
3.1.2 DOJ
3.2 Notice of legal basis and evidence
3.2.1 FTC
3.2.2 DOJ
3.3 Engagement between the parties and the investigative staff
3.3.1 FTC
3.3.2 DOJ
3.4 Internal checks and balances and judicial review
3.4.1 FTC
3.4.2 DOJ
4 Conclusion
4 Due Process in EU Competition Proceedings
1 Introduction
2 The Issue of Legal Representation for the Parties Under Investigation
3 The Parties’ Awareness of the Charges and the Gathered Evidence
4 The Scope for Engagement between the Parties and the Commission
5 The Checks and Balances in the EU Competition Procedures
5.1 Prior to the adoption of a decision
5.2 Judicial review
5.3 Commitments procedure
6 Conclusion
5 Procedural Fairness in Chinese Antitrust
1 Background of the AML
1.1 Overview—the AML and the three antitrust authorities
1.1.1 The anti-monopoly law and administrative provisions on antitrust procedural rights in China
1.1.2 Specific issues of antitrust procedural fairness in China
1.1.2.1 The participation of local and foreign counsel
1.1.2.2 Notification requirements and the disclosure of evidence
1.1.2.3 The engagement between the parties and the investigative staff
1.1.2.4 Internal and external checks and balances on decision-making within the agency
1.1.3 Mixing competition goals with industrial policy concerns in the investigation process
1.2 Issues of notification of basis for legal issues
2 Conclusion
References
6 Due Process and Transparency Requirements for Investigating Competition Cases in Taiwan
1 The Regulatory Framework for Due Process and Transparency Requirements in Taiwan
1.1 The Administrative Procedure Act
1.2 The Freedom of Government Information Law
1.3 The Administrative Penalty Act
1.4 The Taiwan Fair Trade Act and the administrative rules issued by the Taiwan Fair Trade Commission
2 The Implementation of Due Process and Transparency Requirements in Competition Cases
2.1 Legal representation for investigated parties
2.2 Procedural dimensions of factual and evidentiary issues
2.2.1 Opportunities to produce and access materials and evidence
2.2.2 Rights to examine materials and evidence
2.2.2.1 Hearing procedure
2.2.2.2 Decision-making phase
2.2.2.3 The phase for determining penalties and remedial measures
2.3 Ex parte contacts between the investigated parties and staff members and decision-makers within the TFTC
2.4 Judiciary mechanisms to ensure compliance
3 Problems Arising from Implementation Experience
3.1 Legal representation
3.2 Producing, accessing, and examining materials and evidence
3.3 Ex parte contacts with the TFTC
3.4 Judicial mechanisms for ensuring compliance
4 Preliminary Comments and Policy Implications
5 Conclusion
References
7 Procedural Fairness in Hong Kong Competition Law
1 Introduction
2 General Procedural Issues under the Hong Kong Competition Ordinance
3 Case Study on Institutional Design and Procedural Fairness: The Case of TVB in Hong Kong
3.1 The requirement of effective judicial protection
3.2 The standard of proof: civil or criminal?
4 Conclusion
8 Procedural Fairness in Japan: Administrative Fines as a Window
1 Introduction
2 The 1977 Amendment: The Introduction of Administrative Fines
3 The 2005 Amendment: An Overhaul Led by the JFTC
3.1 Overview
3.2 Changes in the substance of administrative fines
3.2.1 Statutory changes
3.2.2 Theoretical changes
3.3 Procedural reforms
4 The 2009 Amendment: Additional Favors for the JFTC
4.1 Overview
4.2 Rejection of the proposals for repealing the quasi-judicial hearing procedure
4.3 Rejection of other procedural proposals
4.4 Enlargement of the eligible categories for the administrative fine
4.5 Reform of premerger notifications
5 The 2013 Amendment: Backlashes for the JFTC
5.1 Repeal of the quasi-judicial hearing procedure
5.2 Strengthening the pre-order procedures
6 After the 2013 Amendment: Debates on Investigation Procedures
6.1 Overview
6.2 The provision of information to firms
6.3 Presence of an attorney during on-the-spot inspections
6.4 Attorney-client privilege
6.5 Presence of an attorney during interviews by the investigators
7 Towards the Next Major Amendment: A Sweeping Overhaul of Administrative Fines?
8 The 2016 Amendment: Possible Changes in Unilateral Conduct
9 Conclusion
9 Procedural Fairness in India
1 Introduction
2 Due Process Issues at the Investigation Stage
2.1 Appropriate notice of the investigation
2.2 Lack of engagement with the authority
2.3 Access to files
2.4 Public disclosure by the CCI/DG
3 Due Process Issues at the Decision-Making Stage
3.1 Engagement with the decision-maker
3.1.1 Signing of CCI’s orders
3.2 Uncertainty of the procedure to be followed
3.3 No hearing given by the CCI on an interim application before passing of an order
4 Due Process Issues at the Remedy Stage
4.1 Individual liability
5 Conclusion
10 Due Process of Law and the Brazilian Antitrust Agency
1 Evolution of Brazilian Antitrust Regulation
2 Main Goals of Brazilian Antitrust Policy
3 Due Process of Law in CADE’s Proceedings
3.1 Due process of law as guaranteed by the constitution
3.2 Due process of law and CADE’s internal regulations
4 Conclusion
References
11 Procedural Fairness and Transparency in Australian Merger Regulation and the Use of Enforceable Undertakings
1 Introduction
2 Merger Regulation in Australia
3 Ability to Review or Challenge Decisions
3.1 Judicial review
3.2 Merits review
3.3 Other avenues
4 Nature of the Negotiation and Decision-making Process
5 Information Gathering During Merger Review
6 Procedural Fairness for Third Parties
7 Conclusion
References
12 Accountability, Private Rights of Action, and Canadian Competition Institutions
1 Introduction
2 Part I: Representation, Notification, Engagement, and Accountability
2.1 Representation
2.2 Disclosure of agency concerns to the parties
2.3 Meaningful engagement
2.4 Accountability
2.4.1 The structure of accountability
3 Part II: Accountability and Expanded Private Rights of Action
3.1 Background
3.2 Private rights of action and transparency
3.3 Expansion of private rights of action
3.4 Transparency and deterrence: the case for allowing damages in private rights of action
3.5 Strategic behaviour: should private rights of action extend to abuse of dominance and mergers?
4 Conclusion
13 Form Follows Function
1 Role of Antitrust—Function
2 Transparency and Due Process—Form
2.1 Public statements and sector inquiries
2.2 Dawn raids and attorney-client privilege
2.3 Timely and meaningful engagement
2.4 Collection of evidence and access to file
2.5 Confidentiality
2.6 Cross-examination
2.7 Internal separation of powers
2.8 Judicial review
3 Practitioner’s View of the World—Room for Improvement
4 Conclusion
14 Due Process in Competition Law Proceedings: Practical Considerations of a Consensus Awaiting Convergence
1 Introduction
2 Why Due Process Now?
2.1 Widespread adoption of competition laws
2.2 The emergence of due process as a topic in its own right
2.2.1 Zero-sum to win-win: recognition that agencies benefit from providing due process
3 Consensus: Here, Now, and Developing
3.1 Consensus on the importance of due process
3.2 Identification of common pillars of due process
3.3 Development of specific due process practices
3.3.1 A (brief) history of international due process convergence efforts for competition law
3.3.2 Current standards for due process in competition law proceedings: the “Big 3”
3.4 Keys to consensus: how’d they do that?
3.4.1 Setting aside institutional design debate
3.4.2 Addressing challenges
3.4.2.1 Challenge: too different
3.4.2.2 Challenge: too hard
3.4.2.3 Challenge: too much
4 Prospects for Progress
4.1 Where should convergence efforts focus?
4.2 A roadmap for next steps
5 Conclusion
References
Further Material
Index
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Index
From:
Antitrust Procedural Fairness
D. Daniel Sokol, Andrew T. Guzman
Content type:
Book content
Product:
Oxford Competition Law [OCL]
Published in print:
24 January 2019
ISBN:
9780198815426
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3.227.247.17