Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Ramirez discusses the challenges in global antitrust enforcement, (Mar 4, 2016)

By Linda O’Brien, J.D., LL.M.

Differences across competition regimes are inevitable but could be beneficial in global antitrust enforcement, said FTC Chairwoman Edith Ramirez in a keynote address to the Problems with Global Antitrust Enforcement Conference, hosted by the Yale School of Management in New Haven, Connecticut. The address was delivered on February 20, but released by the FTC today.

Ramirez began her remarks by stating that competition policy is a work in progress and some degree of experimentation could provide an invaluable basis for judging which rules work better than others. In discussing convergence, the aim of U.S. antitrust enforcers and its foreign counterparts should be the “relentless” pursuit of best practices in tandem, in order to learn from one another and from the agencies’ respective experiences.

To understand the challenges of fostering greater convergence, the recent widespread adoption of competition regimes around the globe must be taken into account, Ramirez noted. Currently, the International Competition Network (ICN) is comprised of more than 130 member agencies. In any discussion of convergence, it is crucial to recognize that (1) many of the these competition regimes emerged out of legal, political, economic, and social circumstances that are quite different from the U.S.; and (2) a large number of agencies are in an early stage of development and have limited experience in applying competition laws.

Defining convergence. In defining convergence, Ramirez noted that there are important variations in process from country to country. Different jurisdictions have widely disparate adjudicative and administrative frameworks through which governmental agencies or private actors pursue the application of substantive antitrust rules. Process is essential, since there are basic procedural norms to which all antitrust regimes should aspire, including procedural fairness and transparency to the parties and the public. Much work remains, particularly in jurisdictions that have recently-established competition authorities.

Ramirez observed that there has been a great deal of progress made in merger enforcement. Today a merger of global dimension may require notifications in a number of jurisdictions. Spurred by the ICN’s recommended practices for merger notification and review procedures, turnover thresholds and other screens ensure that only jurisdictions with significant nexus to the transaction need invest time and resources in evaluating competitive effects.

The political, economic, and cultural context in which antitrust laws are applied also matters, Ramirez continued. Ultimately, the task is one of line-drawing. All antitrust enforcers can agree that unilateral conduct enforcement should not penalize conduct that is shown to be procompetitive in the long run. There are two commonalities that tend to promote more convergent enforcement, in Ramirez’ view. Competition agencies have increasingly relied on the use of economics to inform decision-making about enforcement. Also, competition enforcers have given more prominence to an effects-based approach to antitrust analysis.

Moving forward. Ramirez offered three suggestions on how to move forward, given the differences in enforcement across jurisdiction. First, the FTC should champion the principle that antitrust authorities should enforce competition laws for the sake of protecting competition and promoting consumer welfare, as opposed to political or social goals. Second, the institutional mechanisms that promote interagency coordination and cooperation should be strengthened. Third, the FTC should press for procedural fairness and transparency in antitrust investigations and decision-making. Finally, the grounds for a particular enforcement outcome and underlying decision-making should be articulated to aid the understanding of the parties and the public of the differences between antitrust regimes, Ramirez concluded.

News: Antitrust FederalTradeCommissionNews