In this issue:
Concerns regarding procedural fairness in antitrust actions have assumed global importance, with some well-publicized issues, but we wanted to take a fresh look at a few lesser-known topics. We first asked the U.S. FTC to bring us up to date on current best practices, and then brought in three authorities—Japan, Taiwan, and Australia—to discuss conflicts between these and historical cultural and political practices. We go to the EU to look at another conflict—with the ECHR. And in our Of Special Interest section, Keith Hylton consider some ramifications of the U.S. Actavis decision—the cash transfer away from new-drug investment into covering a litigation tax.
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Fairness
Procedural Fairness in Competition Investigations: U.S. FTC Practice and Recent Guidance from the International Competition Network
Recent international discussion on procedural fairness has recognized that fairness benefits the agencies that provide it. Paul O’Brien, Krisztian Katona, & Randolph Tritell (U.S. FTC)
The Efforts of the JFTC Toward Promoting Procedural Fairness and Transparency in the Investigation Proceedings
The key procedural stage of the JFTC’s investigation process is a newly introduced hearing procedure, which occurs before issuing administrative orders. Toshiyuki NAMBU (Japan Fair Trade Commission)
Procedure Transparency in the Taiwan Fair Trade Commission
From the standpoint of business planning, two dimensions of procedure transparency are worth noting in the TFTC—in clearing legal criteria and during the decision-making process. Diana H.A. Tsai (Taiwan Fair Trade Commission & National Chiao Tung University)
Transparency is Not Just Good for Those Regulated, It Also Strengthens Enforcers—An ACCC Perspective
This approach means that the ACCC’s active engagement with compliance in a particular area will not be a surprise to anyone. Marcus Bezzi & Nicholas Heys (Australian Competition and Consumer Commission)
EU Competition Enforcement and Compliance with Fundamental Rights’ Standards: The Challenge and the Promise of Accession to the ECHR
It is submitted that these considerations are extremely relevant for the enforcement of the EU competition rules which is increasingly left to the NCAs acting “within the scope of Union law” and thus prompts the likelihood of “Convention questions” arising in domestic courts. Arianna Andreangeli (University of Edinburgh)
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Of Special Interest
Reverse Payments Post Actavis: A Litigation Quagmire?
This transfer appears to have been a windfall for consumers, as long as you try not to look at its effects on drug innovation. Keith Hylton (Boston University)
