Procedural Fairness in Competition Investigations: U.S. FTC Practice and Recent Guidance from the International Competition Network

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Paul O’Brien, Krisztian Katona, Randy Tritell, Jul 15, 2015

Procedural fairness has become an increasingly important part of the international dialogue on competition law enforcement. As competition enforcement has expanded, issues and concerns regarding how agencies conduct their investigations have increased. It is important that competition agencies recognize and respond to these concerns for many reasons, including to: (i) ensure that subjects of competition investigations are treated fairly, (ii) ensure the credibility of competition enforcement decisions, and (iii) maximize the quality of competition agencies’ analyses and decisions. As discussed below, the United States Federal Trade Commission (“FTC”) and the International Competition Network (“ICN”) are cognizant of these issues and have developed rules and guidance to address them.

Procedural fairness is a necessary and beneficial ingredient of effective competition enforcement. While competition agencies operate within different legal and institutional frameworks, all enforcement systems can and should provide at least basic levels of fairness. As such, procedural fairness has universal application. Regardless of the chosen enforcement framework, there are specific investigative practices that can promote transparency and better outcomes.

The case for procedural fairness in competition enforcement goes beyond the obligations of good

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