Inter-agency evidence sharing in competition law enforcement
| Author | Marek Martyniszyn |
| Published date | 01 January 2015 |
| Date | 01 January 2015 |
| DOI | http://doi.org/10.1177/1365712714561190 |
Article
Inter-agency evidence sharing
in competition law enforcement
Marek Martyniszyn
Queen’s University Belfast, Northern Ireland, UK
Abstract
While transnational antitrust enforcement is becoming only more common, the access to
foreign-based evidence remains a considerable practical challenge. This article appraises con-
siderations and concerns surrounding confidentiality, and looks into ways of their possible
accommodation. It further identifies and critically evaluates the existing mechanisms allowing
for inter-agency confidential information/evidence sharing in competition law enforcement.
The article outlines the shortcomings of the current framework and points to novel unilateral
approaches. In the latter regard the focus is devoted to Australia, where the competition
agency is empowered to share confidential information with foreign counterparts, also without
any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a
pragmatic and workable approach to inter-agency evidence sharing can be achieved.
Keywords
competition law enforcement, antitrust law enforcement, transnational enforcement,
cooperation agreements, inter-agency cooperation, Mutual Legal Assistance Treaties, MLAT,
information gateways, extraterritoriality, evidence in competition cases, confidential
information
Growing economic interconnectedness is a feature of the global business landscape.
1
Transnational com-
merce grows, even if at a slowed pace as compared to its pre-recession dynamic.
2
At the same time, there
is no World Competition Court. Private anti-competitive conduct is not regulated within any broad, mul-
tilateral framework. Competition laws remain predominantly national.
3
Extraterritoriality is the only
tool of general availability allowing anti-competitive harm caused by foreign entities operating abroad
Corresponding author:
Dr. Marek Martyniszyn, Queen’s University Belfast, Northern Ireland, UK.
Email: m.martyniszyn@qub.ac.uk
1.For detailed data on economic globalisation see KOF Index of Globalization, <http://globalization.kof.ethz.ch/>.
2.For some general thoughts on what type of challenges face multinational companies in the aftermath of the recent crisis see
Ernst & Young, Looking Beyond the Obvious: Globalization and New Opportunities for Growth (January 2013), <http://
www.ey.com/Publication/vwLUAssets/Globalization_-_Looking_beyond_the_obvious/$FILE/LookingBeyondObvious.pdf>.
3.The terms ‘antitrust’ and ‘competition law’ are used in this article interchangeably.
The International Journalof
Evidence & Proof
2015, Vol. 19(1) 11–28
ªThe Author(s) 2014
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DOI: 10.1177/1365712714561190
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to be addressed.
4
From this perspective the major practical challenge in enforcement—often the crux of
the matter—is the issue of accessing foreign-based evidence.
Most antitrust proceedings outsidethe US are not judicial but administrativein nature. This means that
in transnational enforcement, rules of inter-agency cooperation (that is, cooperation between agencies/
authorities of different regimes enforcing competition rules) are of greater practical significance than the
means of international judicial cooperation.
5
That said, the majority of existingcooperation agreements do
not allow for sharing of confidential information, or providing assistance in obtaining evidence,
6
despite
the fact that ‘accessing relevant information is the lifeblood of competition enforcement’.
7
While international cooperation in the field of antitrust is overall a success story, the ‘worst part of the
track record’
8
—as Judge Wood put it—is the lack of the development of inter-agency enforcement coop-
eration. This relates primarily to the very issue of information and evidence sharing, despite the numer-
ous calls for greater collaboration in this regard.
9
In fact, in the recent international enforcement
cooperation survey conducted by the Competition Committee of the Organization for Economic Coop-
eration and Development (OECD), many competition agencies acknowledged that legal limits prevent-
ing them from exchanging confidential information and evidence are the primary impediment to
international cooperation.
10
Given the limitations of the international judicial assistance and the territorial nature of enforcement
jurisdiction under international law,
11
information sharing between competition authorities has an
important role to play in narrowing down the existing enforcement gap. By enabling access to
foreign-based evidence, such cooperation improves the effectiveness of reliance on extraterritorial appli-
cation of domestic competition law.
12
In the longer term it could lead—through trust building—to a
more multilateral response to challenges posed by transnational anti-competitive conduct.
This article offers an original contribution to the existing literature by identifying and critically eval-
uating the existing mechanisms allowing for inter-agency confidential information/evidence sharing in
competition law enforcement. It outlines the shortcomings of the current regulatory framework and
4.See generally on extraterritoriality Menno T. Kamminga, ‘Extraterritoriality’ in R. Wolfrum (ed.), The Max Planck Ency-
clopedia of Public International Law, online edn (Oxford University Press: Oxford, 2010), <http://www.mpepil.com/>. For
some discussion in the antitrust context see, for example, Eleanor M. Fox, ‘Can we Solve the Antitrust Problems of Glo-
balization by Extraterritoriality and Cooperation? Sufficiency and Legitimacy’ (2003) 48(2) Antitrust Bulletin 355.
5. Ju
¨rgen Basedow, ‘Competition Policy in a Globalized Economy: from Extraterritorial Application to Harmonization’ in
Manfred Neumann and Ju
¨rgen Weigand (eds), The International Handbook of Competition (Edward Elgar: Cheltenham,
2004) 325.
6.For the analysis of enforcement cooperation agreements see Anestis S. Papadopoulos, The International Dimension of EU
Competition Law and Policy (Cambridge University Press: Cambridge, 2010) 52–82. See further OECD, International
Enforcement Co-operation: Secretariat Report on the OECD/ICN Survey on International Enforcement Co-operation
(OECD: Paris, 2013) 19, 119–40, <http://www.oecd.org/competition/InternEnforcementCooperation2013.pdf>.
7.B.J. Sweeney, The Internationalisation of Competition Rules (Routledge: London, 2010) 279.
8.D.P. Wood, ‘Soft Harmonizing among Competition Laws: Track Record and Prospects’ (2003) 48 Antitrust Bulletin 305 at
315–16.
9.For example, within the OECD framework. See OECD, Hard Core Cartels: Recent Progress and Challenges Ahead (OECD:
Paris, 2003) 44, 47. The case of merger review is somewhat different, since it is quite natural for merging parties to grant
confidentiality waivers, allowing competition agencies to share and discuss the submitted information, facilitating the review.
For discussion of confidentiality waivers in this context and sample waivers forms, see International Competition Network,
‘Model Confidentiality Waiver’ (2005), <http://www.internationalcompetitionnetwork.org/uploads/library/doc330.pdf>.
10.OECD, above n. 6 at 22–3.
11.Although the practices of states vary, the conservative view holds that under international law it is permitted merely to notify a
foreign party in a foreign state about the proceedings in the forum. No command could be addressed to such a party; no threat
of penalties for non-compliance can be imposed. See generally F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’
(1964) 111 Recueil des Cours 1, ch. IV.
12.Apart from that key effect, such cooperation helps to avoid contradictory outcomes and allows for more efficient allocation of
scarce resources of agencies (by, for example, allowing to avoid duplication). This is particularly so when cooperating
authorities investigate the same conduct.
12 The International Journal of Evidence & Proof 19(1)
12
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