Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC Commissioner Ohlhausen Offers View on International Competition Enforcement at Symposium in China , (Mar 22, 2013)

By E. Darius Sturmer, J.D.

FTC Commissioner Maureen K. Ohlhausen spoke regarding “The Never-ending yet Vital Pursuit of Greater Cooperation, Convergence, and Transparency” at an antitrust symposium held by the China Institute of International Antitrust and Investment in Beijing today.

Commissioner Ohlhausen noted that while much has been accomplished toward those objectives by agencies around the world, there always remained room for improvement in all three areas. Each of the goals “is essential to a well-functioning system of global competition authorities,” she said.

Cooperation. Ohlhausen described inter-agency cooperation on competition cases as “critical,” given the global nature of many businesses and transactions. She explained that cooperation allowed agencies to identify issues of common interest, to improve their analyses, and to avoid inconsistent outcomes. Enabling of the effective and efficient enforcement of competition laws helped to maintain competitive markets and a more attractive investment climate, she added. It also helps businesses around the globe by enhancing certainty, which in turn facilitated greater investment and innovation.

She summarized the FTC’s involvement and priorities in the area, citing the agency’s efforts to work with the Canadian Competition Bureau and the Directorate General for Competition at the European Commission on merger investigations. She cautioned, though, that new rules governing data privacy could make such cooperation more difficult. Ohlhausen also praised recent coordination efforts between China and both U.S. competition agencies.

Convergence. In stressing the pursuit of greater convergence, Commissioner Ohlhausen reiterated the importance of consistent outcomes. From the U.S. perspective, she said, “sound competition analysis, consistent outcomes, and convergence toward best practices benefits U.S. consumers and ensures that U.S. businesses receive fair and equal treatment from competition regimes around the world.” Standardization “also can reduce unnecessary costs associated with competition enforcement.”

Ohlhausen pointed to the FTC’s prominent role within the International Competition Network and the Organization of Economic Cooperation and Development, as well as the Asia-Pacific Economic Cooperation, as evidence of the agency’s commitment to the continuing process of “soft convergence,” which she described as “dialogue among agencies, identifying superior practices, and voluntary acceptance of such practices.” She cautioned, however, that “for the foreseeable future, substantive convergence will remain a challenge.”

Transparency. Finally, Ohlhausen promoted transparency about how and why competition agencies enforce their laws. She observed that transparency in enforcement “offers guidance to market participants on how to comply” with a jurisdiction’s competition laws. This can not only foster increased compliance, but improve the credibility of the competition agency, she remarked.

The Commissioner cited the FTC’s issuance of enforcement guidelines, policy statements, statements in connection with the closing of significant investigations, and merger review process data as forays into this arena. However, she criticized the agency’s recent decisions in two actions involving standard-essential patents, saying that the agency’s settlements against the involved companies—Robert Bosch GmbH and Google, Inc.—did nothing to resolve the “inherent ambiguity in the FTC Act” regarding the meaning of “unfair methods of competition” or to clarify how the Commission would use its enforcement discretion under the Act. Instead, the decisions created conflict between the FTC and other U.S. government institutions.

Ohlhausen lauded the strides that the three Chinese competition authorities—the Chinese Ministry of Commerce, the National Development and Reform Commission, and the State Administration for Industry and Commerce—have each made toward increasing transparency. She encouraged the agencies to make further efforts toward transparency in the areas of merger remedies and the interaction between competition law and industrial policy.

News: Antitrust FederalTradeCommissionNews