International engagement continues to be a top priority for the Antitrust Division. Through both case-specific cooperation and forward-thinking policy initiatives, the Division’s International Program has spent the past year working with enforcers from around the world to encourage effective competition law development.
International Case Cooperation
The Division’s investigative teams continued to cooperate closely with their international counterparts. In FY 2018, the Division cooperated with 14 international counterparts on 16 different merger and civil nonmerger matters. On the criminal side, Division staff collaborated with 13 jurisdictions on cross-border investigations and global cartel enforcement.
Multilateral Framework on Procedures
The Division advanced a longtime priority, promoting due process in antitrust investigations, through the Multilateral Framework on Procedures (MFP), an initiative designed to achieve agreement among antitrust agencies worldwide on fundamental procedural norms. Announced by Assistant Attorney General (AAG) Makan Delrahim in June 2018 and developed in close cooperation with leading agencies around the world, the MFP aims to establish fundamental due process principles, and to obtain participants’ commitment to abide by these norms. The proposal identifies approximately a dozen universal principles, including nondiscrimination, transparency, meaningful engagement, timely resolution, confidentiality, conflicts of interest, proper notice, opportunity to defend, access to counsel, and judicial review. The proposal complements these substantive provisions with strong adherence, cooperation, and review mechanisms designed to ensure meaningful compliance.
The Division introduced the MFP to the global community of competition agencies over the summer, and held meetings to discuss the initiative and its commitments at the Fordham conference in New York in September and on the sidelines of the Organisation for Economic Co-operation and Development (OECD) in Paris in November. More than 40 antitrust agencies from around the globe attended these meetings and expressed unanimous support for the substantive principles set forth in our proposal. Based on suggestions from several partners, over the last few months the Division has worked closely with the German Federal Cartel Office, chair of the International Competition Network (ICN), to evaluate ways to implement our initiative within the ICN, in order to take advantage of existing institutions and processes, and to reduce administrative burdens on participants.
The resulting text, the Framework on Competition Agency Procedures, incorporates the substantive principles of the original MFP and combines these principles with adherence, cooperation, and review provisions that closely resemble the parallel mechanisms in the MFP. The ICN is expected to adopt this proposal in the coming weeks, and it will be open to all competition agencies worldwide, both ICN members as well as nonmember agencies. This would be a remarkable achievement for the ICN. Historically, the ICN has focused on issuing recommendations and guidance to its member agencies. The proposed framework, in contrast, will reflect participating agencies’ commitment to uphold fundamental due process norms. The framework goes well beyond anything the ICN has done in the past, and it will send the clear signal that competition agencies across the globe are committed to fundamental procedural norms.
Division Efforts to Protect Attorney-Client Privilege in Other Jurisdictions
Attorney-client privilege is a critical procedural norm. The Division has sought to secure proper recognition of the privilege and appropriate treatment for materials subject to it by foreign competition authorities. In negotiating the United States-Mexico-Canada Agreement (USMCA), the Division succeeded in adding a clause recognizing the privilege, and the U.S. Trade Representative has included in the negotiating objectives for competition policy chapters of future trade agreements provisions “recognizing privileged communications” and “providing for the protection of confidential and privileged information and communications.”
The Division’s MFP initiative, discussed above, also seeks to obtain participating agencies’ commitment to recognize applicable privileges, including attorney-client privilege, and encourages them to have rules, policies, or guidelines on the treatment of privileged information.
Over the course of the last year, the Division has had discussions with some of our major trading partners to encourage them to adopt robust attorney-client privilege protection. Deputy Assistant Attorney General (DAAG) Roger Alford, for example, was the keynote speaker at a conference hosted by the Mexican Federal Economic Competition Commission (COFECE) in May in Mexico City on the privilege. The Division has also had staff level discussions with foreign agencies, including COFECE, about the practical aspects of the attorney-client privilege as they consider how to recognize privilege in their work.
Over the past year, the Division has continued to maintain and expand close relationships with its counterparts around the world. During the course of FY 2018, the Division participated in over 60 meetings with its fellow enforcement agencies at home and abroad. A few examples of our international engagement include the following.
In May 2018, DAAG Alford and Division staff met with Japanese Fair Trade Commission leadership in Tokyo, Japan. During that trip, DAAG Alford also attended and spoke at the Antitrust in Asia: ASEAN, China, Hong Kong, and India Conference in Hong Kong. While in Hong Kong, he met with counterparts from the Competition and Consumer Commission of Singapore. The Division visited with its Chinese counterparts in June and August 2018, and in September 2018, DAAG Richard Powers and Division staff attended the 10th Seoul International Competition Forum. He and staff also met with the Korean Fair Trade Commission (KFTC) and Korean Ministry of Justice while in Korea. In December 2018, the Division hosted senior officials from the Korean Ministry of Justice’s Seoul Central Prosecutor’s Office in Washington, D.C.
AAG Delrahim and DAAG Alford visited Brussels in May 2018, and in September 2018, officials from the European Commission came to Washington for a U.S.-EU bilateral with AAG Delrahim, PDAAG Finch, DAAG Alford, Division officials and staff, and the U.S. Federal Trade Commission (FTC). Discussions at the meeting included the Division’s proposed Multilateral Framework on Procedures, two-sided markets and platforms, and future opportunities for cooperation and convergence on merger investigations.
The Division also continued to build upon its close working relationship with antitrust enforcers in Canada and Mexico. In addition to the USMCA negotiations and the COFECE conference discussed above, in November 2018, AAG Delrahim hosted antitrust agency heads from the Canadian Competition Bureau, COFECE, and the FTC for a productive trilateral meeting.
The Division is committed to its role in the ICN, the competition work of the OECD, and other multilateral organizations.
A founding member of the ICN, the Division has continued to serve on the Steering Group, which guides the ICN’s work. The Division currently co-chairs the Agency Effectiveness Working Group which this year has focused on promoting procedural best practices, studying the effects of organizational design on an agency’s efficiency, and promoting the role of economics in the effective enforcement of the antitrust laws.
Division officials also participated in the ICN’s Cartel Workshop in Tel Aviv, Israel, which covered meetings on a range of topics including the role of leniency programs, evidence gathering, and cross-border investigations. In addition, Division officials attended the ICN Unilateral Conduct Workshop in Stellenbosch, South Africa; the Merger Working Group Workshop in Tokyo, Japan; and the Advocacy Workshop in Kyiv, Ukraine.
In May 2018, PDAAG Andrew Finch visited Seoul, South Korea to attend and give a speech at the ABA Antirust in Asia Conference. While in Korea, PDAAG Finch met with KFTC Chairman Kim Sang-jo.
In June and November 2018, the Division participated in the biannual Competition Committee meetings of the OECD in Paris, France. Topics discussed included challenges and coordination of leniency programs, taxi markets, e-commerce, consumer-facing remedies, market concentration, attorney-client privilege, gun-jumping, and personalized pricing and zero-pricing in the digital economy.
The Division continued its work with the Competition Policy and Law Group of the Asian Pacific Economic Cooperation forum, as well as the United Nations Conference on Trade and Development Intergovernmental Group of Experts by taking part in panels and workshops throughout the course of the year.
The Division provided technical assistance to other enforcement agencies around the globe, offering programs on topics such as merger enforcement, economic investigative tools, and leniency programs. In FY 2018, Division attorneys and economists led programs in 15 countries including Guatemala, El Salvador, Honduras, Georgia, Mexico, Hungary, India, and the Philippines. A total of 24 Division officials participated in 22 different technical cooperation programs, including one official who served as a long-term advisor in Ukraine.