The Independence of Decision-Maker Principle in Competition Law Enforcement

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Stanley Wong, Jun 16, 2014

In an earlier article, Thinking About Procedural Fairness of Competition Law Enforcement across Jurisdictions: A Suggested Principled Approach, I suggested that in order to engage in meaningful debate about procedural fairness, a principled approach is needed. I proposed that such a principled approach should contain, at minimum, three core principles, which I labeled as Disclosure Principle, Right of Defense Principle, and Independence of Decision-Maker Principle.

In this article I propose to elaborate on the Independence of Decision-Maker Principle (Independence Principle). In the earlier article, I described the Independence Principle in the following terms: “The decision maker which decides whether or not there is a violation of competition law should be independent and impartial.” I also suggested that for analytical purposes, the process of competition law enforcement should be divided into five stages: initiation, investigation, prosecution, decision on the merits, and decision on sanctions, if any.

It is also important to identify another stage in discussing procedural fairness. This is the stage when a decision on the merits (or sanctions) is reviewed by a court that is composed of one or more independent and impartial decision makers. I refer to this stage as “judicial supervision” rather the more commonly used terms such as “judicial review” or “judicial appeal” as the lat…

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