IP And Antitrust: The Importance Of Due Process And The ICC Best Practices

November 20, 2017

The need to implement effective procedural rights and guarantees to ensure the fair and proportionate exercise of competition agencies’ enforcement powers has been a topical subject for many years.2 However, in light of increased enforcement levels by an ever growing number of competition agencies, often with diverging procedural and substantive rules, and resulting heightened risks of inconsistent outcomes, due process requirements have never been more relevant. The growing crossborder dimension of antitrust investigations exacerbates this risk, particularly in IP-centric cases, where the potential impact of remedies may go well beyond the relevant domestic market(s) at issue.

The effective observance of due process principles across jurisdictions is therefore essential to ensure procedural fairness and transparent decision-making and to minimize the risk of ill-informed decisions.

This contribution discusses the relevance of procedural rights in antitrust enforcement in light of the Best Practices issued by the Competition Commission of the International Chambers of Commerce, the world’s largest business organization (the “ICC Best Practices”) and it highlights their crucial role in the context of IP-related cases.3 In addition, this paper examines a number of specific procedural safeguards which are not always guaranteed, are not uniformly available, or are not always effectively applied by competition agencies.

Included in CPI's November 2017 Antitrust Chronicle "IP on Tech’s Cutting Edge: LeadershIP EU".

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