CPI ICN Column edited by Maria Coppola (U.S. Federal Trade Commission)
Report on the ICN’s 15th annual conference
The ICN held its 15th annual conference, hosted by the Competition Commission of Singapore (CCS), on April 26-29, 2016. Nearly 550 participants from more than 80 jurisdictions participated, including competition experts from international organizations and the legal, business, consumer, and academic communities. The conference showcased the achievements of ICN working groups on unilateral conduct, agency effectiveness, mergers, cartels, and competition advocacy.
At the meeting, ICN members approved new guidance related to merger remedies, agency assessment and performance measurement, cartel investigative powers, market studies, competition agency ethics programs, and advocacy to the business community. The ICN also presented findings from a network-wide assessment to help shape its operations, agenda, and future work plans, known as its “Second Decade initiative”, and the conference hosts held a special session on disruptive innovation.
The results of the 2016 ICN’s Second Decade initiative reinforced the network’s commitments to inclusive engagement with its members and non-governmental advisors, experience sharing and the exchange of best practices among members, promotion of convergence and cooperation around sound enforcement approaches, and international advocacy for competition principles to the benefit of member agencies, consumers, and economies worldwide.
This past year, the Competition Commission of Singapore (CCS) conducted a special project on government advocacy and disruptive innovation. Based on survey responses from 44 member agencies the CCS produced a comparative report showcasing agency experience advocating competition considerations to government with regard to disruptive innovations, key challenges faced in doing so, and approaches to overcome these challenges. While the report finds that disruptive innovations pose little concern for competition agencies as they tend to spur greater static and dynamic competition in markets, the responses to disruptive innovations by incumbents and governments can raise competition concerns for competition authorities. Since disruptive innovations can raise concerns in areas such as employment, consumer protection, public safety and health, governments can face pressure from businesses and consumers to regulate, or even ban them altogether. Thus, the report observes, advocacy efforts by the competition agency play a critical role in balancing these tensions. The report concludes with general observation regarding the increasing prominence of disruptive innovations and the implications for competition agencies.
The ICN’s regular working groups – on mergers, cartels, unilateral conduct, advocacy, and agency effectiveness, also highlighted new work.
The new Merger Remedies Guide provides the fundamental principles of merger remedies and the application of those principles when designing and implementing remedies. This Guide updates the ICN’s 2005 Merger Remedies Review Report, elaborating on key aspects of structural and non-structural remedies, relevant provisions to include in a remedy order, how to ensure the effective implementation of those provisions, and considerations for remedies in the multijurisdictional context.
The Merger Working Group presented the results of an exercise to assess the level of use and implementation of the ICN’s Recommended Practices for Merger Notification and Review Procedures. Relying on an online self-assessment questionnaire, the exercise obtained information from 80 jurisdictions. The results provide insight on conformity with the Recommended Practices, member use and implementation of the Practices, areas for new implementation efforts, and identification of topics ripe for recommended practices.
The Cartel Working Group presented two new work products designed to aid members’ cartel enforcement efforts: a catalogue of agency investigative powers and a framework for sharing non-confidential information. The framework aims to facilitate cooperation among member agencies. Working group discussions at the conference addressed effective detection and deterrence, enforcement cooperation, leniency, compliance, and sanctions.
The Agency Effectiveness Working Group developed reports on agency ethics and measuring agency performance, which were adopted at the conference. The evaluation project explores common formats for the results of agency evaluation; the quantification of performance, including workload and efficiency metrics; qualitative evaluation; and how the results of evaluation are used by agencies. The ethics project explores how agencies ensure integrity in their investigative process and decision-making and prevent non-compliance with ethics rules. Each report presents common approaches and perspectives on the respective topics to provide ideas for agencies looking to improve their ethics programs or evaluation practices. The working group also presented new on-line training modules on setting up a new competition agency, setting priorities, conducting dawn raids in cartel investigations, applying economic analytical tools, and addressing state restraints – adding to the ICN’s Training on Demand online curriculum.
The Advocacy Working group presented an update of its Market Studies Good Practices Handbook and online Market Studies Information Store, a unique resource of over 600 competition agency market studies spanning 10 years and covering more than 30 jurisdictions. The working group also expanded its web-based toolbox on competition advocacy, providing examples of agency messages to business on the benefits of competition.
The Unilateral Conduct Working Group provided an update of its work on the Analytic Framework for Assessing Unilateral Conduct. Over the past year, the group received position papers and held teleconferences on two topics: what is substantial market power and what conduct is exclusionary. The working group also announced the launch of a new project to analyze the effects of vertical restraints in online markets.