Article | Anti-trust Law
Due Process in Antitrust Enforcement: Normative and Comparative Perspectives
by Christopher S. Yoo*, Thomas Fetzer†, Shan Jiang‡, and Yong Huang§
94 S. Cal. L. Rev. 843 (2021)
Keywords: Anti-trust Law, Due Process, Competition Law
A global consensus has emerged recognizing the central role that competition law plays in promoting a nation’s prosperity. As the briefing notes on trade and competition policy for the 2003 Cancún World Trade
Organization (“WTO”) Ministerial acknowledged, there is a “growing realization that mutually supportive trade and competition policies can contribute to sound economic development, and that effective competition policies help to ensure that the benefits of liberalization and market-based reforms flow through to all citizens.”1 Although competition law was eventually deleted from the agenda of the Doha Round of General Agreement on Tariffs and Trade (“GATT”) negotiations, having an effective competition law regime has become a de facto prerequisite for joining the WTO.2 The number of competition law enforcement agencies has continued to grow, with the membership of the global group of competition law authorities known as the International Competition Network (“ICN”) now including more than 130 countries.3
Adherence to basic principles of due process has long been recognized as an essential aspect of proper competition law enforcement. The rule of law is generally understood to include several critical procedural components, such as “due process, judicial review (by an independent judiciary), equal application of the law, and transparency” in decision- making processes.4 The WTO recognized that clarifying “core principles including transparency, non-discrimination and procedural fairness” represented one of the key mandates for its Working Group on the Interaction between Trade and Competition Policy.5
China has also increasingly embraced the importance of due process in the wake of its accession to the WTO.6 For example, in 2018, the Chinese Securities Regulatory Commission has also instituted a system of independent administrative adjudicators to bring Chinese practice in line with international norms.7
Recent judicial decisions have further underscored the importance of fair procedures and adequate judicial review. The Chinese Hainan District Court, for instance, recently reversed an Anti-Monopoly Law (“AML”) decision by the local Development and Reform Commission (“DRC”). Although the Hainan High Court later reversed the district court’s decision,8 it further resulted in a retrial by the Supreme People’s Court. It was an important sign that decisions by enforcement agencies cannot avoid judicial review. Likewise, on September 6, 2017, the European Court of Justice (“ECJ”) sent a competition law case against Intel Corp. back to the General Court with instructions to examine all the arguments put forward by Intel.9 Additionally, the ECJ agreed with the ombudsman’s conclusion that enforcement authorities must maintain full records of both formal and informal meetings with competitors and held that the European Commission had erred in merely providing a nonconfidential summary of an interview to Intel, although the court concluded error did not influence the decision.10 This rare rebuke pushed the Commission to adhere more carefully to the procedural rules protecting due process. Both judicial decisions underscore the importance of reasoned decisionmaking, internal controls, and transparency associated with fair enforcement procedures.
The past year has borne witness to an upsurge of interest in due process in the competition law community. For example, at its most recent annual meeting, the ICN adopted its Recommended Practices on Investigative Process, which represents the most authoritative type of document the ICN typically adopts,11 and sixty-two agencies became inaugural signatories of the ICN’s new Framework for Competition Agency Procedures (“CAP”).12
In addition, the Organization for Economic Co-operation and Development (“OECD”) extended its prior work on procedural fairness and transparency13 by conducting additional roundtables on the topic.14 It also began consideration of a Draft Recommendation of the Council on Transparency and Procedural Fairness in Competition Law, which lays out principles that could serve as benchmark for due process in antitrust enforcement.15 As a follow up to its best practices issued in 2015,16 the American Bar Association (“ABA”) Antitrust Section’s International Task Force conducted an assessment of the extent to which different agencies were complying with them.17 The Association of Southeast Asian Nations (“ASEAN”)18 and the International Chamber of Commerce (“ICC”)19 have offered similar guidance.
While the existing guidelines and best practices are helpful, they are pitched at a high level of generality and stop short of detailed application to national law. This Article strives to fill that void by engaging in a detailed comparison of procedures employed by competition law officials in China, the European Union (“EU”), and the United States and making nine recommendations that would improve due process.
It is now a fitting moment to assess the state of enforcement processes. China’s AML celebrated its tenth anniversary of implementation in 2018, and China is currently considering possible revisions. The National People’s Congress Standing Committee recently revised China’s Administrative Litigation Law to make it more conducive to economic growth.20 At the same time, President Xi Jinping led a major anti-corruption campaign designed to stop government decisions that are motivated by personal or parochial interests and other abuses of power.21 All are part of broader efforts to balance the government-market relationship and make enterprises operating in China more market responsive and efficient.
*. John H. Chestnut Professor of Law, Communication, and Computer & Information Science and Founding Director of the Center for Technology, Innovation and Competition (CTIC), University of Pennsylvania.
†. Chair of Public Law, Regulation Law, and Tax Law, School of Law and Economics, University of Mannheim, and Academic Director of the Mannheim Centre for Competition and Innovation (MaCCI). ‡. Associate Professor and Researcher of the Competition Law Center, University of
International Business and Economics (UIBE) School of Law.
§. Professor of Law and Director of the Competition Law Center, UIBE School of Law. The authors would like to thank Professor Lixia (Nell) Zhou of UIBE, Professors Guobin Cui and Yuan Hao of the Tsinghua University School of Law, Professor Shen Kui of Peking University Law School, Roger Alford, Maria Coppola, Kris Dekeyser, Ian Forrester, Douglas Ginsburg, Andrew Heimert, Elizabeth Kraus, John Temple Lang, Valeria Losco, Philip Lowe, Paul O’Brien, Giovanni Pitruzzella, Ronald Stern, Randolph Tritell, Marc van der Woude, and the participants in the conferences conducted at the Penn Wharton China Center, Seoul National University’s Center for Competition Law, Chung Yuan Christian University, University of Southern California Gould School of Law’s Center for Transnational Law and Business, and Luxembourg for the comments on earlier drafts of this paper. Thanks to Louis Capozzi, Allie Gottlieb, Jennifer Mao-Jones, and Hendrik Wendland for their expert research assistance.