Antitrust Compliance Research Articles

Innovative Practices and Future Directions of Antitrust in Online “Live Streaming Sales”

Online “live streaming sales”, as an emerging platform economic model, exhibits significant differences in economic characteristics compared to traditional industries. Therefore, unique strategies distinct from those applied to traditional industries should be adopted in antitrust governance within the realm of online “live streaming sales”. China has implemented innovative practices from multiple perspectives, including legislation and law enforcement. However, the rapid advancement of antitrust regulation in online “live streaming sales” through administrative means poses challenges related to high economic costs, necessitating the establishment of a long-term regulatory mechanism centered on innovation-driven development. The key to achieving long-term regulation lies in ensuring the legalization of antitrust supervision, specifically involving the construction of a scientific and stable policy framework for antitrust regulation, the improvement of a legalized antitrust law enforcement system, the enhancement of the systematic and effective guidance for antitrust compliance, and the promotion of innovative practices in antitrust law enforcement policies. These measures will effectively maintain a fair competition order in the market and promote the healthy and sustainable development of the digital economy.

АНТИМОНОПОЛЬНЫЙ КОМПЛАЕНС КАК ФОРМА ВНУТРЕННЕГО КОНТРОЛЯ В СИСТЕМЕ УПРАВЛЕНИЯ РИСКАМИ В ОРГАНИЗАЦИИ

The article examines the essence and significance of antitrust compliance in terms of risk management in a modern organization. The digital economy, its implementation in all spheres of the economy at the level of the state, industries, organizations and society as a whole, in addition to positive aspects that accelerate the development of all processes, also carries additional risks. Information leak-age, its not always correct interpretation leads organizations to the understanding that without risk man-agement and their internal control it is difficult to remain competitive and effective. The directions of compliance risk management are considered taking into account the legislative framework.

Improving Compliance With Antitrust Measures Through Commercial Policies

Commercial policies for major market participants were introduced in Russia about a decade ago in order to improve compliance with antitrust provisions and as a partial substitute for them. Experts were initially rather sceptical about this move because it was a departure from prevailing international practices and also imposed additional regulatory burdens on companies. This article examines whether commercial policies have been an effective way to improve antitrust compliance by Russia’s pharmaceutical companies, reduce erroneous accusations, and drive down the costs of antitrust enforcement for both the antitrust authorities and market players. Analysis of the commercial policies of several large pharmaceutical companies indicates that their rules are meant to address the abuse of market dominance in the sector which has been alleged by the Federal Antimonopoly Service of the Russian Federation (FAS). Inasmuch as a refusal to supply counts as an infringement of Russia’s legislation on competition and also in view of particular aspects of competition in the Russian pharmaceutical markets, such commercial policies have great potential, first, to diminish erroneous accusations and, second, to reduce the costs of enforcing the legislation on competition. The authors conclude that introducing commercial policies has been beneficial for both consumers (as represented by the FAS) and the pharmaceutical companies.

Perspektivy vnedreniya antimonopol'nogo komplaensa v pravo EAES

The article analyzes the legislation of France, Great Britain, Germany and the USA in terms of the presence or absence of normative regulation of the institution of antitrust compliance for government agencies and business entities. The article also assesses the positive and negative effects of antimonopoly compliance in the EAEU member states. The authors formulated proposals for the introduction of antimonopoly compliance in the EAEU member states and at the interstate level, taking into account international experience.

Plan-Do-Check-Act Model (PDCA) as a Possible Methodological Basis for Antimonopoly Compliance

The article is devoted to the questions of functioning of the system of antimonopoly compliance, its implementation in Russia. It is proposed to use the model of continuous process improvement — PDCA — as a possible methodological basis for the functioning of the antitrust compliance system. The authors conclude that the continuous process improvement model (PDCA) can be applied in practice, which will also be used as a methodological basis for antimonopoly compliance. The PDCA methodology can contribute to the organization of a compliance program with elements such as a sales policy aimed at defining a transparent pricing mechanism and ensuring non-discriminatory conditions with counterparties.

ОСОБЕННОСТИ РЕГУЛИРОВАНИЯ АНТИМОНОПОЛЬНОГО КОМПЛАЕНСА

The article examines the peculiarities of antitrust compliance regulation. Currently, compliance risks occupy an important place in the activities of companies, since they have a high degree of danger. The compliance and risk management system should be implemented through the risk management unit not only in the credit and banking sectors, but also in entities operating in other areas. Control procedures in the field of antimonopoly compliance at the moment in Russia are legally located only at the initial stage of development, it is necessary to improve and implement the compliance function in different areas.

Compliance in Competition Law: Problems of Theory and Practice

The article is devoted to the research of the main directions of development of the antitrust compliance of an economic entity as a new institution of competition law. The author analyzed scientific approaches to the introduction of the antitrust compliance system into the structure of corporate governance of commercial corporations, as well as the guidelines of the US Department of Justice and the European Commission. Particular attention in the article was paid to the analysis of key regulatory legal acts and established practice of the FAS Russia in this area. It is argued that antitrust compliance is an integral element of the corporate governance system aimed at reducing the antitrust risks of an economic entity and forming a legal culture of compliance with antitrust requirements by its employees. It is argued that voluntariness is the basis for the implementation of an effective system of antitrust compliance, which corresponds to generally accepted approaches that exist in world practice. The consequences of independent disclosure of a violation by an economic entity by applying the antitrust compliance system in the form of exemption and mitigation of administrative responsibility are determined.

Antimonopoly Compliance in the Member States of the Eurasian Economic Union (Legal Aspects of Practical Application)

The article is devoted to the following issues: application of the antitrust compliance institute in the member states of the Eurasian Economic Union (EAEU); inclusion in the law of the EAEU of provisions related to the institution of antitrust compliance: the development of international standards of antitrust compliance. The main goal of the study was to determine the place of the antimonopoly compliance institute in the system of competition development in the EAEU member states. To achieve this goal, the author made a comparative analysis of the formation of antitrust compliance in the EAEU member states, studied the dynamics of the introduction of antitrust compliance in the practical activities of economic entities.

Antitrust Compliance in the Pharmaceutical Industry: Problems and Prospects of Implementation

The article examines the background of legislative consolidation and the main problems of the introduction by pharmaceutical companies of a new legal institution for the prevention of violations of antimonopoly legislation — antimonopoly compliance, introduced by Federal Law No. 33-FL of March 1, 2020.The definition of the concept and a brief description of the current state and trends in the development of the pharmaceutical industry in connection with the relations of competition are given.The necessity of introducing antimonopoly compliance by pharmaceutical companies as a relatively independent part of pharmaceutical compliance as the most general (universal) tool for self-prevention of any offenses by the company itself and all its employees in connection with official activities is substantiated.The main antimonopoly risks associated with the implementation of pharmaceutical companies’ economic activities are named. Typical examples of violations of antimonopoly legislation by pharmaceutical companies are considered.The results of a sample survey of pharmaceutical industry representatives conducted by the author on their attitude to the introduction of antimonopoly compliance are presented.Proposals have been formulated to amend the Code of Administrative Offences of the Russian Federation in order to create additional incentives for the implementation of antimonopoly compliance.

The legal nature of antitrust compliance as a mechanism for respect of national and in- ternational legal regulation of protection of economic competition

The article considers the legal nature of antitrust compliance as a mechanism of respect for national and international legal regulation of protection of economic and commercial competition. The author researched the influence of antitrust compliance on the quality of competition advocacy, on the prevention of violations of legislative norms in the field of protection of economic competition and on reducing the overall workload on the state antitrust authorities. The article analyzes the legal concept of antitrust compliance in narrow and broad interpretations. It is proposed to examine the legal nature of antitrust compliance through a functional approach, which includes the vectors of antitrust compliance that constitute its essence, as well as through the normative provisions of antitrust compliance at the legislative level.The article describes in detail such vectors of antitrust compliance as assessment of market specifics, assessment of own market share, assessment of risk zones in connection with information exchange, assessment of the level of employees’ awareness of compliance with corporate antitrust compliance rules, assessment of potentially high-risk forms of legal activities (in particular the dominant position, the risk of unfair competition, horizontal and vertical agreements, mergers and acquisitions agreements, not providing information to the state antitrust authorities. The article describes in detail such vectors of antitrust compliance as assessment of market specifics, assessment of own market share, assessment of risk zones in connection with information exchange, assessment of the level of employees’ awareness of compliance with corporate antitrust compliance rules, assessment of potentially high-risk forms of legal activities (in particular the dominant position, the risk of unfair competition, horizontal and vertical agreements, mergers and acquisitions agreements, not providing information to the state antitrust authorities).Special attention is paid to the influence of antitrust compliance mechanism in M&A transactions. The author links the provision on antitrust compliance at the legislative level with the overall effectiveness of legal regulation of protection of economic competition.The article extensively examines the forms of legislative provisions on antitrust compliance, in particular in the form of recommendations, standards and norms of laws. The author analyzes the experience of foreign state antitrust authorities regarding the normative provisions of the antitrust compliance mechanism. The article reviews approaches of the European Commission, the Competition Bureau of Canada, the French Competition Authority, the UK Office of Fair Trading, the Antitrust Division of the U.S. Department of Justice and others. In addition, the author highlights ways to encourage the implementation of antitrust compliance in companies by recognizing the existence of antitrust compliance programs as a mitigating circumstance in the case of punishment, including by reducing the relevant sanctions. The author focuses on the relevant foreign jurisprudence. The legislative provisions of separate vectors of antitrust compliance in the Ukrainian legislation were found, in particular, a review of the leniency program was made. The implementation of a comprehensive regulatory and legal establishment of the mechanism of antitrust compliance in Ukraine is proposed.

Antimonopoly Compliance in the Energy Sector

The purpose of the article is to identify and clarify the main features of the functioning and implementation of the antimonopoly compliance system at electric power enterprises. The main idea of the article is to use various methods (analysis, induction, etc.) to conduct a study of changes in domestic legislation that relate to the legislative consolidation of the antimonopoly compliance system. Based on statistical data and data from scientific sources, we can identify the main areas of activity of energy companies, where violations of antitrust legislation are most common, which will be identified and prevented by the antitrust compliance system. The scientific novelty of this article is confirmed by the almost absent publications of other authors, which study the effectiveness of the antimonopoly compliance system in the field of electric power industry. The author comes to the conclusion that the antitrust compliance system is an effective mechanism that allows identifying antitrust risks both inside the company and outside it. An increase in the number of companies that have antitrust compliance services will reduce the number of illegal violations by unscrupulous market participants, while these circumstances affect not only the electric power industry, but also other areas of the Russian economy. According to the author, the implementation of antitrust compliance will help to: l) reduce the number of offences committed by companies; 2) to prevent the actions of employees, which may in its work, to violate the antitrust laws; 3) to reduce the number of anti-competitive actions. Availability of antitrust compliance within the company promotes as corporate ethics, and the adoption by the staff of the values of the organization.

Antitrust compliance: system standardization issues

The article examines the etymology and prehistory of the introduction of the institution of antimonopoly compliance in Russian business practice, the relationship of this institution with the institution of general compliance. The article considers the definition of the concept of antimonopoly compliance, enshrined in the new article 91 of the Federal Law "On Protection of Competition".The authors propose their own definition of the concept of antimonopoly compliance as an activity of an economic entity aimed at ensuring compliance with antimonopoly legislation by employees of an economic entity and an economic entity as a whole by preventing and suppressing violations of the requirements of such legislation and regulatory legal and law enforcement acts based on it.The authors also substantiate the advisability of developing a special national standard GOST R "System of internal compliance with the requirements of antimonopoly legislation (antimonopoly compliance system) of an economic entity".It is noted that the effectiveness of the antimonopoly compliance system will depend not only on the ability of an economic entity to form an antimonopoly compliance system on the basis of an appropriate national standard, but also on the state's ability to determine and guarantee effective incentives to comply with antimonopoly legislation.The authors substantiate the advisability of supplementing the Code of Administrative Offenses of the Russian Federation with provisions that provide for the obligation and limits to reduce the amount of punishment or replace the punishment with a softer one in the event of an anticompetitive administrative offense by a person who has implemented an effective system of antimonopoly compliance.

The Price Fixer: Compliance Tales from the Other Side

This paper fills an important gap in the antitrust compliance literature by exploring the perspective of the price fixer in breaches of competition law. It provides a critical analysis of statements made by price fixers, their competition lawyers and in-house counsel involved in cartel cases. The study draws on a combination of publicly available statements and anonymised accounts collected over 15 years of engaging with each of these three groups. It concludes that those responsible for cartels are motivated by varying factors and do not necessarily understand or accept that cartel behaviour is wrongful. Also, disciplining those individuals is complicated by the incentives created through leniency and settlement programmes. These findings highlight the importance of continued investment in compliance and the broader need for education in competition law to make it less likely that infringements will occur in the first place.

RISK ASSESSMENT FOR VIOLATION OF ANTI-TRUST LEGISLATION BY STATE EXECUTIVE AUTHORITIES

The article deals with a problem of building an anti-trust compliance system in state executive authorities from the point of view of contemporary risk management. The authors expound a well-known instrument based on the bow-tie diagram construction which successfully helps to develop effective measures to prevent violation of anti-trust legislation cases by state executive authorities. They also give some numeric results of statistical modelling of anti-trust legislation violation risks by state executive authorities by means of the Monte-Carlo method.

Antitrust-Compliant AI Industry Self-Regulation

The touchstone of antitrust compliance is competition. To be legally permissible, any industrial restraint on trade must have sufficient countervailing procompetitive justifications. Usually, anticompetitive horizontal agreements like boycotts (including a refusal to produce certain products) are per se illegal. The “learned professions,” including engineers, frequently engage in somewhat anticompetitive self-regulation through professional standards. These standards are not exempt from antitrust scrutiny. However, some Supreme Court opinions have nevertheless held that some forms of professional self-regulation that would otherwise receive per se condemnation could receive more preferential antitrust analysis under the “Rule of Reason.” This Rule weighs procompetitive and anticompetitive impacts to determine legality. To receive the rule-of-reason review, such professional self-regulation would need to: 1. Be promulgated by a professional body; 2. Not directly affect price or output level; and 3. Seek to correct some market failure, such as information asymmetry between professionals and their clients. Professional ethical standards promulgated by a professional body (i.e., comparable to the American Medical Association or American Bar Association) that prohibit members from building unsafe AI could plausibly meet all of these requirements. This paper does not argue that this would clearly win in court, or that such an agreement would be legal. Nor does it argue that it would survive rule-of-reason review.† It merely says that there exists a colorable argument for analyzing such an agreement under the Rule of Reason, rather than a per se rule. Thus, this could be a plausible route to an antitrust-compliant horizontal agreement to not engineer AI unsafely.

The Evolution of Antitrust Regulation in Russia in Digital Era

The article includes a comprehensive analysis of changes that have been taking place in Russian antitrust enforcement in response to the digitalization of the economy. Digitalization has led to increase of the role of information and digital platforms in day-to-day business activities of the market players. Digitalization vanished geographical boundaries of the digital markets and modified market structures in general. Innovative technologies, big data, and intellectual property have become the key drivers of economic growth. The authors analyze new violations of antimonopoly legislation in the digital era (in particular collusive tendering using auction robots), the anticompetitive effects resulting from the use of pricing algorithms, and the first approaches of the antitrust authority to regulations of the algorithmic pricing. In addition, within the framework of this article, the first legal positions of the antitrust authority regarding the use of pricing algorithms, as well as the new approaches of the regulator to the analysis of digital markets in merger control are considered, taking into account such factors as network effects, big data and technologies. Moreover, the authors analyze the first practice of using the technology transfer as a remedy in merger control by the antitrust authority to mitigate anti-competitive effects of the transactions planned in the Russian market. Finally, the authors conduct an overview of the new legal provisions governing the mandatory pre-installation of applications by Russian developers, and also describe the background for this initiative. When considering the above topics, the authors deeply analyze the relevant Russian and foreign legislation, draft laws, and the law enforcement practice of the Federal Antimonopoly Service. New approaches of the regulator to the analysis of digital markets in the framework of antitrust investigations and merger control, as well as automation of the processes of detecting antitrust violations, demand more attention from market players. Companies are encouraged to take these trends into account in their business activities, reflect them in antitrust compliance programs, as well as implement additional measures to prevent potential antitrust violations in digital markets, in particular, committed with the use of pricing algorithms.

Why Screening Is a 'Must Have' Tool for Effective Antitrust Compliance Programs

Over the last decade, screens have had a significant impact on the early stages of litigation. Empirical evidence has helped shape complaints, motions to dismiss, court decisions, and agency investigations on collusion and manipulation matters. Yet to date they have played almost no role in corporate antitrust compliance programs. Why might this have been the case? Arguably the primary reason is that authorities did not, until very recently, offer meaningful consideration to corporations’ compliance programs when violations were found. Specifically with respect to screens, corporations were unwilling to spend any money to implement them, whether because they did not believe screens could be effective or whether it was just part of a general unwillingness to invest in compliance tools. We have long expected that the high penalties for cartels, the expansion of leniency programs, and the increased use of screening methods by competition authorities and private litigants would motivate corporations to enhance their antitrust compliance programs and incorporate screens as part of such improvements. Leniency is extended to the first to report a violation, so it naturally follows that it would be advantageous to be the first to detect violations. Antitrust compliance programs should play very important roles in detection and self-reporting, and also in deterrence, and screens should have had a major role within such programs, but to date this has not been the case. However, we expect this is about to change. The U.S. Department of Justice’s (“DOJ”) recent change in policy towards compliance programs is likely to encourage meaningful investments in this area. The DOJ now offers formal incentives for “effective” compliance programs, directing prosecutors to evaluate in-place compliance programs as part of every corporate charge recommendation. Furthermore, throughout its evaluation, the Antitrust Division explicitly considers whether screens and statistical analyses are elements of the corporation’s antitrust compliance program.

Развитие конкуренции, монополизм и монополизация в пореформенной России: теоретические и практические аспекты

The article discusses the competition development and monopolization features in post-reform Russia in the context of comparing the research problem relevance at the beginning of the perestroika processes in Russia and after the thirty-year period of Russian economy reforming. The analysis of the competition and monopolization im-pact on the development of commodity markets was done. The state management problems of competition and the processes of limiting monopolization development are systemic. The state competitive policy is carried out on the developed regulatory basis at the federal, regional and local levels; and it finds a business environment backward response in the form of expanding practice of introducing antitrust compliance in business processes. The process of competition is developing in Russia economy; the competitive environment expansion and monopolization level decrease are reflected in it, however, stable monopolistic tendencies remain in some economy sectors and activity fields in the economy.

Antitrust compliance: background to the legislative novel

The article is devoted to the analysis of the concept and prerequisites of consolidating the institution of antitrust compliance in the Federal Law “On Protection of Competition”. The history and problems of the development and adoption of the Federal Law of 01.03.2020 No. 33-FZ “On Amendments to the Federal Law” On the Protection of Competition “, which defines the legal basis of antitrust compliance, is examined.

Problems of implementing antitrust compliance in Russia (applicability of foreign experience)

The concept of antitrust compliance, the prospects for its implementation in the activities of legal entities of Russia (taking into account the relevant experience of individual foreign countries) are considered. It also analyzes the possibility of classifying the presence of an antitrust system in companies as extenuating circumstances in case of violations of the relevant legislation. Factors that can increase the productivity of this system are investigated.