The Antitrust Review of the Americas 2019

United States: Department of Justice, Antitrust Division

19 September 2018

Director of Civil Enforcement

International counsel

Introduction

Over the past year, the Antitrust Division of the US Department of Justice has maintained its long-standing commitment to international cooperation, both in its investigations as well as through multilateral organisations and initiatives. As the antitrust enforcement community is confronting an increasing number of cross-border transactions, shared policy challenges and the globalisation of cartel investigations, the Antitrust Division's relationships with foreign antitrust agencies continue to grow stronger. Indeed, the division views close cooperation with its counterparts north and south of the borders, as well as with antitrust agencies worldwide, as an important tool to further enhance the effectiveness and efficiency of its enforcement programme. The number of investigations involving coordination with foreign agencies clearly demonstrates the division's commitment to international cooperation. In 2017 and 2018 alone, the Antitrust Division has cooperated with 19 different antitrust agencies from 17 countries worldwide – including six countries in the Americas – on 26 different civil investigations. The Antitrust Division also actively supports and promotes the invaluable work of international organisations such as the International Competition Network (ICN) and the Organisation for Economic Co-operation and Development (OECD) in the antitrust enforcement arena, and it has recently launched a new initiative to promote and strengthen procedural fairness in antitrust investigations globally.

Antitrust case cooperation in the Americas

Even in an increasingly global economy, economic relations with countries across the Americas remain particularly important to the United States. Indeed, Canada and Mexico are the first- and second-largest export markets for US goods, and the second and third-largest import markets, and other countries in the Americas are likewise among the nation's major trading partners.1 The same is also true conversely, as the United States is the most important trading partner for most countries across the Americas. In light of these close economic ties, it is of little surprise that mergers and acquisitions or restrictive business practices frequently are the subject of parallel investigations by various antitrust agencies across the Americas. It has been the division's policy – aided by 15 bilateral cooperation agreements, including with antitrust agencies in Brazil, Canada, Chile, Colombia, Mexico and Peru – to actively cooperate with other agencies on parallel investigations wherever permissible under the applicable rules. Companies recognise the benefits of such cooperation, which can help to minimise the risk of substantive or procedural conflicts in parallel investigations, as well as reduce the costs and uncertainties related to such investigations through an exchange of information and expertise among the agencies involved. Not surprisingly, therefore, the trend of close cooperation between the Antitrust Division and its counterparts in the Americas has continued over the past year.

In 2017 and 2018, 11 different investigations of the Antitrust Division involved cooperation with other antitrust enforcement agencies in the Americas, including in Argentina, Brazil, Canada, Chile, Ecuador and Mexico. The division's review of the Bayer/Monsanto merger is a particularly noteworthy example of such cooperation. That transaction raised significant competition issues, both with respect to the horizontal combination of the parties' competing seed businesses as well as with respect to the vertical integration of significant Bayer seed treatment assets with Monsanto's leading seed businesses. The division closely coordinated its investigation with five enforcement agencies in the Americas – Argentina's National Commission for the Defence of Competition, Brazil's Administrative Council for Economic Defence, Canada's Competition Bureau, Chile's National Economic Prosecutor's Office and Mexico's Federal Economic Competition Commission – in addition to the European Commission and seven other agencies around the globe. Aided by waivers from the parties, the division communicated regularly with its foreign counterparts to coordinate the agencies' competition analyses. Through the course of their discussions, the agencies determined that they largely shared competitive concerns related to the transaction. Division staff regularly discussed these concerns as well as potential remedies to address them with its foreign partners. The Antitrust Division worked closely together with its partners to ensure alignment in securing a global remedy to resolve all horizontal and vertical competition concerns. Ultimately, the division cleared the transaction subject to one of the largest negotiated divestiture packages in its history. In this case, as in others, the Antitrust Division found international cooperation with other antitrust authorities to be an invaluable resource. In its press release at the conclusion of the Bayer/Monsanto investigation, the division recognised the valuable cooperation with its enforcement partners around the world and expressed particular thanks to the Canadian Competition Bureau and Brazil's Administrative Council for Economic Defence in addition to the European Commission for their 'close and constructive collaboration on this matter'.2

Increased focus on procedural fairness in antitrust investigations

Promoting procedural fairness in antitrust investigations globally has been a long-term objective of the Antitrust Division for several years. Over the past year, this topic has come increasingly into focus through a variety of new initiatives. In early 2017, the Antitrust Division and the Federal Trade Commission (FTC) jointly issued revised guidelines for international enforcement cooperation,3 which stressed both agencies' commitment to cooperation with foreign authorities with a view to promoting 'convergence of substantive enforcement standards that seek to advance consumer welfare, based on sound economics, procedural fairness, transparency and non-discriminatory treatment of parties'.4 In October 2017, in his first published speech following his appointment as Assistant Attorney General, Makan Delrahim similarly emphasised the 'fundamental role of the rule of law and procedural fairness in the application of the antitrust laws' and urged the enforcement community to develop 'a worldwide understanding that antitrust enforcement has no exemption from universal procedural norms for law enforcement'.5 Then, in March 2018, following months of preparation, including close cooperation between the Antitrust Division and the FTC, the 17th annual conference of the ICN adopted two sets of recommendations on procedural fairness to its more than 140 member agencies6 – the ICN 'Guiding Principles for Procedural Fairness in Competition Agency Enforcement'7 and the 'ICN Guidance on Investigative Process'.8 The OECD's Competition Committee also began to explore additional ways to promote transparency and procedural fairness.9 Finally, in June 2018, the Antitrust Division, in partnership with the FTC and leading antitrust agencies around the world launched negotiations of the Multilateral Framework on Procedures in Competition Law Investigation and Enforcement (MFP), which is designed to achieve agreement among antitrust agencies across the globe on fundamental procedural norms.10 The proposed MFP builds upon, and indeed complements, the significant efforts of the ICN, as well as work within the OECD, to promote procedural fairness in antitrust enforcement.

The goal of the MFP is to identify procedural norms that are truly universal, and to achieve commitment from participating agencies to abide by these rules. The MFP proposal is based on norms that are generally accepted across the globe and that almost every agency already has recognised in some form. These principles were derived based on the texts of competition chapters in several major trade agreements as well as numerous OECD and ICN guidelines and recommendations touching on procedural fairness, in conjunction with an examination of procedures and practices of antitrust authorities around the world. As a result of this effort, the proposed MFP identifies approximately a dozen core values, which the participating agencies will commit to uphold. Among these core principles are commitments regarding non-discrimination, transparency, meaningful engagement, timely resolution, confidentiality, conflicts of interest, proper notice, opportunity to defend, access to counsel, and judicial review. The MFP also strives to ensure meaningful compliance among participating agencies, beyond suggestions, guidelines and recommendations, through formal commitments and peer review. While initially negotiated among a group of approximately a dozen leading agencies, the MFP is intended to be an open instrument, which every competition authority around the world will have the opportunity to join. The Antitrust Division expects that this approach will generate momentum toward strong core commitments with widespread adherence in the coming months.

Conclusion and outlook

Antitrust Division staff has been engaged extensively in case cooperation with enforcement agencies in the Americas and around the world, building upon and strengthening relationships along the way. The successful outcomes of cases such as Bayer/Monsanto exemplify both the strength and the value of these relationships, and the Antitrust Division is committed to continuing its international cooperation efforts. In the policy arena, the Antitrust Division continues to support and promote, and play an active role in, multilateral organisations such as the ICN and the OECD, which provide crucial platforms for the exchange of ideas, helping to sharpen and improve policies and ultimately to improve antitrust enforcement. Consistent with, and indeed complementing, principles and guidelines adopted by these organisations, the division will continue to promote through bilateral and multilateral agreements, such as the proposed MFP, effective and efficient antitrust enforcement based on sound principles and procedural fairness.

Notes

1 US Census Bureau, ‘Top Trading Partners – December 2017’, available at https://www.census.gov/foreign-trade/statistics/highlights/top/top1712yr.html.

2 Press Release, US Department of Justice, 'Justice Department Secures Largest Negotiated Merger Divestiture Ever to Preserve Competition Threatened by Bayer's Acquisition of Monsanto' (29 May 2018), available at https://www.justice.gov/opa/pr/justice-department-secures-largest-merger-divestiture-ever-preserve-competition-threatened.

3 US Department of Justice and Federal Trade Commission, 'Antitrust Guidelines for International Enforcement and Cooperation' (13 January 2017), available at https://www.justice.gov/atr/internationalguidelines/download.

4 Id at p 37.

5 Makan Delrahim, 'International Antitrust Policy: Economic Liberty and the Rule of Law', Remarks as Prepared for Delivery at 'Antitrust in Developing Countries: Competition Policy in a Politicized World', NYU School of Law and Concurrences (27 October 2017), available at https://www.justice.gov/opa/speech/file/1007231/download.

6 Press Release, US Department of Justice, 'International Competition Network Adopts Guiding Principles for Procedural Fairness and New Recommendations for Merger Review' (23 March 2018), available at https://www.justice.gov/opa/pr/international-competition-network-adopts-guiding-principles-procedural-fairness-and-new.

7 ICN, 2018 ICN Annual Conference Materials, 'ICN Guiding Principles for Procedural Fairness in Competition Agency Enforcement', available at http://icn2018delhi.in/images/AEWG-Guiding-Principles-4PF.pdf.

8 ICN, 2018 ICN Annual Conference Materials, 'ICN Guidance on Investigative Process', available at http://icn2018delhi.in/images/AEWG-New-GIP.pdf.

9 OECD, 'Scoping note on Transparency and Procedural Fairness as a long-term theme for 2019–2020' (23 April 2018), available at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/WD(2018)6&docLanguage=En.

10 Press Release, US Department of Justice, 'Assistant Attorney General Makan Delrahim Delivers Remarks on Global Antitrust Enforcement at the Council on Foreign Relations' (1 June 2018), available at https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-global-antitrust-enforcement.

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