In this issue:
Debate about due process has heated up in recent months. Our guest editor, Paul Lugard, has organized a special issue that highlights a number of recent developments: the intensity of judicial review in the EU in the wake of ECtHR’s ruling in Menarini and other cases, whether the concept of a “corporate human rights” principle should be applicable, recent actions by Chinese authorities that have created worry about fair dealings for companies around the world, and the JFTC’s revamping of its administrative model. We conclude with an insightful discussion of impartiality.
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Due Process
Procedural Fairness and Transparency in Antitrust Cases: Work in Progress
A number of current, interrelated trends in the international antitrust arena contribute to the growing importance of procedural fairness in competition law proceedings. Paul Lugard (Baker Botts)
The EU Courts Play a Crucial Role in Ensuring Compliance of the EU’s System of Competition Law Enforcement With Due Process Rights
It seems fair to say that, as a result of Menarini and Schindler, the compatibility of the EU system of antitrust enforcement with Article 6 ECHR and Article 47 of the Charter depends on the degree of judicial control exercised by the EU courts. Georg M. Berrisch (Baker Botts)
Due Process in Antitrust Proceedings Before the European Commission: Fundamental Rights are Not Enough
An enforcement system does not become adequate simply because it does not infringe fundamental rights. Martin Möllmann (White & Case)
A Call for a Restriction of “Corporate Human Rights” in Competition Enforcement Procedures, and More Generally
The design of economic law enforcement mechanisms should be concerned with providing a workably sound framework, but should not strive to the same level of guarantees that are designed for criminal law investigations against the individual person. Albert Sanchez-Graells (Univ. of Leicester) & Francisco Marcos (IE Law School)
Due Process in Chinese Competition Law Regime
There is substantial room for development before antitrust due process protections become adequate, effective, and consistent in China. Michael Han & Janet (Jingyuan) Wang (Freshfields)
Due Process and Procedural Rights Under the China Anti-Monopoly Law
Many of the needed procedural reforms in AML policy and enforcement appear to be rendered more difficult, if not impossible, by certain so-called “bureaucratic politics.†H. Stephen Harris, Jr. (Winston & Strawn)
Balancing Fairness and Efficiency in the Globalized Competition Law Enforcement: Insights from JFTC Experiences
The Japanese experience regarding transformation of its administrative-hearing may help reveal the relative pros and cons of the U.S. FTC and the EU models. Toshiaki Takigawa (Kansai Univ.)
The Independence of Decision-Maker Principle in Competition Law Enforcement
Procedural fairness in competition law enforcement can only be guaranteed through the adoption of the Independence of Decision-Maker Principle. Stanley Wong (StanleyWongGlobal)
