The Case for Global Best Practices in Antitrust Procedural Fairness

Book excerpt: Procedural fairness and its two component parts, transparency and due process, are paramount to a well-functioning antitrust/competition law system. Due process and transparency help to shape not merely the process but the substance of antitrust investigations and cases. They are bedrocks of the functioning of the legal system and offer legitimacy to given competition authority. Strong procedural fairness safeguards forces parties to debate only the merits of decisions and not the procedural inputs of how decisions were derived due to failures in due process or a lack of transparency. Procedural fairness concerns in antitrust have captured headlines for global mergers, cartel investigations and abuse of dominance cases. Across jurisdictions, parties involved in antitrust matters have raised concerns regarding procedural fairness issues in antitrust. These concerns have grown over time as competition authority emphasis has been placed on global mergers and conduct investigations. Additionally, issues of procedural fairness have remained central in the policy community as practitioner and academic conferences raise the importance of such issues in the competition law context. The lack of effective procedural fairness impairs effective competition law and policy. It also makes it more difficult for businesses to plan effectively because of the risk involved in antitrust enforcement that is based not on the particular conduct in question but on the uncertainty due to uneven enforcement. The deleterious effects are more far reaching than any individually badly decided case as lack of procedural fairness threatens the legitimacy of the entire competition policy system. This hurts consumer welfare. This chapter explores the nature of procedural fairness issues in global antitrust. It explains the justifications for procedural fairness and the drivers for why such concerns have become significant in antitrust. Then, the chapter explores global antitrust institutions to understand if and how global best practices are possible for antitrust procedural fairness. The chapter concludes with advocacy of an approach that combines elements of hard law through free trade agreements and soft law through the OECD and ICN and through an informal "coalition of the willing" in ways that are complementary.