Due Process in Antitrust Enforcement: Normative and Comparative Perspectives

65 Pages Posted: 24 Mar 2020 Last revised: 15 Dec 2020

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

Thomas Fetzer

University of Mannheim

Shan Jiang

University of International Business and Economics (UIBE) School of Law

Yong Huang

University of International Business and Economics (UIBE)

Date Written: December 14, 2020

Abstract

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and substantive rights of the respondent in the investigation process. In conducting evidence review and arriving at punitive decisions, the enforcement agency should establish a separation between investigatory and adjudicatory functions. Finally, the issued punishment decision should contain more comprehensive information and be subject to judicial review of the court.

Keywords: Antitrust, due process, transparency, procedural fairness, judicial review, separation of functions, disclosure of evidence, multilateralism, Anti-Monopoly Committee, Directorate-General for Competition, national competition authority, Federal Trade Commission, Antitrust Division of the DOJ

Suggested Citation

Yoo, Christopher S. and Fetzer, Thomas and Jiang, Shan and Huang, Yong, Due Process in Antitrust Enforcement: Normative and Comparative Perspectives (December 14, 2020). Southern California Law Review, Vol. 94, Forthcoming May 2021, U of Penn Law School, Public Law Research Paper No. 20-11, Available at SSRN: https://ssrn.com/abstract=3558179 or http://dx.doi.org/10.2139/ssrn.3558179

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)

Thomas Fetzer

University of Mannheim ( email )

Universitaetsbibliothek Mannheim
Zeitschriftenabteilung
Mannheim, 68131
Germany

Shan Jiang

University of International Business and Economics (UIBE) School of Law ( email )

No. 10, Huixin Dongjie, Room 708, Ningyuan Buildin
Chaoyang District
Beijing
China

Yong Huang

University of International Business and Economics (UIBE) ( email )

No. 10, Huixin Dongjie
Chaoyang District
Beijing
China

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