Antitrust and Due Process
Christopher Hockett looks at the inconsistencies many international practitioners face across jurisdictions in antitrust due process, lack of transparency, and procedural fairness. Hockett presents evidence from a survey of 100 private firms, and makes a series of suggestions for a substantive conversation about due process norms, that are still very relevant today.
Christopher Hockett looks at the inconsistencies between jurisdictions in antitrust due process and the lack of transparency and procedural fairness many international practitioners face. He notes, that in a survey of 100 private firms, 68% reported that “the enforcers did not disclose their theory of economic harm or the data used to support it”, and 41% were “not given a meaningful opportunity to challenge the evidence against them or to cross-examine witnesses during the agency process”. The majority also reported that, if they were given the opportunity to hold regular meetings with the agency, they were not meaningful.
Hockett makes the following suggestions for a substantive conversation about due process norms, moving forward that are still very relevant today:
(1) Opportunity for a meaningful hearing by the decision maker before enforcement action is taken;
(2) Actual and perceived neutrality of the merits decision maker;
(3) Transparency of (a) the legal standards that apply to the conduct in question; and (b) the theory of how those legal standards apply in particular cases—both when enforcement is being weighed and when investigations are closed with no action taken;
(4) Party access to evidence collected in connection with an enforcement action;
(5) Party ability to challenge and test evidence, including questioning of adverse witnesses;
(6) Protection of parties’ and third parties’ confidential information from unauthorized disclosure; and (7) Ability to challenge enforcement outcome before an independent judicial or administrative body.