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Paul Lugard, Jun 16, 2014
There is broad consensus on the need for, and growing importance of, transparency and procedural fairness in competition enforcement. However, the objectives, scope, and practical application of the associated procedural rights have never been undisputed. On the one hand there is a general belief that the wide powers of competition law enforcement agencies require the application of checks and balances. On the other hand, day-to-day practice demonstrates that procedural rights differ significantly from one jurisdiction to another; for instance, the wide variance in degree and ways that the parties to an antitrust investigation can obtain sufficient and timely information about material competitive concerns.
Not surprisingly, the importance of procedural rights and their practical application to real-life cases are often complex and tend to be dependent on legal, cultural, historical, and economic factors. It is hard to dispute the proposition that different traditions may entail different processes and that, despite these differences, competition agencies may still arrive at equivalent end results, albeit through different ways and means. However, this possibility obviously does not mean that all outcomes are-by definition-equally fair and effective in safeguarding the procedural rights of parties subject to an antitrust investigation.
On the contrary, there are—unfortunately—too many examples around the world of enforcement practices that, despite often the best intentions and highest morals of individual agency officials, simply do not meet any reasonably conceivable minimum standard of due process rights. The argument that, as yet, no generally accepted catalog of minimum acceptable procedural norms exists does not alter this observation, but merely underscores that a set of best practices in this area is needed more than ever.