Designing Competition Law Institutions

Abstract

A striking diversity of competition law institutions exists around the world. There are three basic institutional models: (1) the bifurcated judicial model, in which specialised investigative and enforcement authorities bring formal complaints before the courts; (2) the bifurcated agency model, in which specialised investigative and enforcement agencies bring formal complaints before separate, specialised adjudicative agencies; and (3) the integrated agency model in which a single specialised agency undertakes investigative, enforcement and adjudicative activities. Institutions may also combine features of the three models, but this article focuses on the three models as useful points of reference. This article conducts a preliminary evaluation of the advantages and disadvantages of each of these models against a set of normative criteria identified at the outset of the article, including such considerations as independence, accountability, predictability and flexibility. As these considerations suggest, important procedural values often will be in tension with one another. The article evaluates the tendencies of each of the models to vindicate the different normative criteria. It then considers the role of political appeals from adjudicative decisions. Finally, the article considers the political economy of the choice of institutional arrangement. While the article considers international experience, it draws primarily on Canadian experience.