Agency-Party Engagement During Competition Investigations: Perspectives from the ICN’s Investigative Process Project

CPI ICN Column edited by Maria Coppola (U.S. Federal Trade Commission)

Agency-Party Engagement During Competition Investigations: Perspectives from the ICN’s Investigative Process Project – Paul O’Brien* (US Federal Trade Commission)

The International Competition Network has an ongoing, multi-year project on competition agencies’ investigative processes. The project’s aim is “to increase understanding among ICN members of how different investigative processes and practices can contribute to enhancing the effectiveness of agencies’ decision-making and ensuring effective protection of procedural rights.”¹

The ICN is not alone in its work in this area. Indeed, procedural issues such as transparency, predictability, and engagement have received increased attention of late in various international bodies, reflecting the spread of competition law to many countries with different legal systems and cultures. Notably, the OECD published a Procedural Fairness and Transparency Report in February 2012, the culmination of three roundtable discussions on transparency and procedural fairness held in 2010 and 2011.² Several portions of the report examine how competition agencies provide transparency into their laws, policies, and processes encountered by parties under investigation. The OECD Report recognized “a broad consensus on the need for, and importance of, transparency and procedural fairness in competition enforcement, notwithstanding differen