Procedural Fairness in Antitrust Enforcement: The U.S. Perspective

Abstract

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decision-making, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the Association of Southeast Asian Nations (ASEAN), the International Chamber of Commerce (ICC), and the American Bar Association (ABA) have all offered frameworks for promoting greater fairness in antitrust enforcement. Because the U.S. was the first country to enact an antitrust law, it has enjoyed the longest opportunity to develop its enforcement practices. As such, after first introducing the key antitrust enforcement institutions, this chapter will explore the manner in which U.S. implements four key procedural protections (legal representation, notice of the legal basis and evidence underlying the alleged violation, engagement between the parties and the investigative staff, and internal checks and balances/judicial review) to provide insights into ways to improve U.S. law and in the hopes that other jurisdictions might benefit from the U.S. experience.