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

In ANTITRUST PROCEDURAL FAIRNESS (D. Daniel Sokol & Andrew Guzman eds., Oxford University Press 2019, Forthcoming).

U of Penn Law School, Public Law Research Paper No. 18-43

24 Pages Posted: 8 Feb 2019

See all articles by Christopher S. Yoo

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Hendrik M. Wendland

University of Pennsylvania

Date Written: December 12, 2018

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.

Keywords: Competition law, antitrust procedure, due process, Federal Trade Commission, FTC, Department of Justice, DOJ, Antitrust Division, right to counsel, civil investigative demands, CIDs, administrative law judges, courts, appeals

Suggested Citation

Yoo, Christopher S. and Wendland, Hendrik M., Procedural Fairness in Antitrust Enforcement: The U.S. Perspective (December 12, 2018). In ANTITRUST PROCEDURAL FAIRNESS (D. Daniel Sokol & Andrew Guzman eds., Oxford University Press 2019, Forthcoming).; U of Penn Law School, Public Law Research Paper No. 18-43. Available at SSRN: https://ssrn.com/abstract=3330791 or http://dx.doi.org/10.2139/ssrn.3330791

Christopher S. Yoo (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

Hendrik M. Wendland

University of Pennsylvania ( email )

Philadelphia, PA 19104
United States

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