Assessment of Global Competition Agency Implementation of ABA Best Practices for Antitrust Procedure

In May 2015, the ABA Section of Antitrust Law (Antitrust Section) issued Best Practices for Antitrust Procedure (Best Practices). The exercise of identifying and cataloguing best practices in a systematic way was motivated by a desire in the Antitrust Section to contribute to and advance a dialogue in the international community promoting norms of procedural fairness in antitrust enforcement. The publication of the Best Practices facilitated the next natural step; namely, the establishment of the Procedural Transparency Task Force (PTTF) in 2016 to study, assess and
report on the extent to which competition authorities around the world are applying principles of due process, procedural transparency and fundamental fairness consistent with the principles presented in the Best Practices. Although the Best Practices do not purport to dictate the specific policies or procedures of any individual Agency, they articulate basic standards for practice that the PTTF believes all competition authorities should apply. As has been noted by the International Competition Network, “[i]nternal safeguards and agency practices that support informed decision making improve the quality of enforcement actions, increase the likelihood of effective outcomes, and strengthen agency credibility.” The PTTF fully endorses this objective.

The objective of the PTTF is to stimulate continued focus and discussion on the importance of “procedural transparency,” and to contribute practical observations about the application of basic standards of fairness across jurisdictions. There have been a number of initiatives in recent years designed to articulate procedures that should be applied to competition investigations undertaken by competition authorities. In turn, perhaps due to the increasing international attention on competition agencies’ internal practices, a number of agencies have reevaluated their own rules and procedures. At times, they have made modifications designed to improve their processes. At other times, they have concluded that their stated procedures are adequate. Other
agencies have elected not to engage in any self-assessment, or at least not to acknowledge such self-examination. In any event, to date, there has been very little assessment by third parties of the
extent to which agencies are applying procedural transparency practices that measure up to objective standards.

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