International Competition Network Conference Finalizes Merger Guidelines Workbook to Improve Merger Review Analyses, Established Unilateral Conduct Working Group

The Federal Trade Commission announced today that at the conclusion of the International Competition Network (ICN) conference in Cape Town, South Africa, significant accomplishments were made, including the completion of a Merger Guidelines Workbook and a new agenda that includes a working group on unilateral conduct.

The fifth annual conference, hosted by the South African competition authorities, which took place from May 3-5, 2006, was attended by nearly 300 representatives of almost 70 antitrust agencies and competition experts from international organizations and the legal, business, consumer, and academic communities. Commissioner William E. Kovacic of the FTC, as well as Thomas O. Barnett, Assistant Attorney General in charge of the Department of Justice’s Antitrust Division, addressed the conference.

ICN members adopted suggested best practices for antitrust enforcement in the telecommunications sector, underscored the importance of the ICN’s anti-cartel work, and highlighted the significant progress member jurisdictions have made in implementing ICN recommendations and work product. The members also approved a new work agenda that includes a study of agency cooperation in anti-cartel enforcement, and workshops on merger investigation and analysis.

The conference highlighted the recent work of four ICN working groups which focused on mergers, cartels, antitrust enforcement in the telecommunications sector, and competition policy implementation. In addition, the ICN established a new working group to address unilateral conduct that will be co-chaired by the FTC and the German Federal Cartel Office.

“The Unilateral Conduct Working Group has great promise to deepen understanding of the foundations of existing policy and to promote common acceptance of superior analytical concepts and techniques,” said FTC Commissioner William Kovacic.

“Nearly five years after its creation, the ICN has developed into a leading forum for the discussion of practical antitrust convergence efforts. In mergers, cartels, advocacy, and nearly all aspects of antitrust enforcement, ICN's flexible, project-oriented approach has proven well suited to practical convergence efforts by and for its member agencies,” said Barnett.

A significant accomplishment at the conference was the roll-out of a Merger Guidelines Workbook, designed to be a useful source book for analyzing the competition effects of mergers. The Merger Working Group, chaired by Deputy Assistant Attorney General Gerald Masoudi, also announced that it will hold its first regional investigative techniques workshop in South America and presented a “take-home” version of the workshop for use by ICN members in their in-house training sessions.

Randolph Tritell, Assistant Director for International Antitrust at the FTC, delivered remarks highlighting developments in the Merger Notification and Procedures Subgroup, including progress in implementing the ICN’s Recommended Practices for Merger Notification and Review Procedures. The working group also rolled-out an Implementation Handbook, a practical tool for agencies that contains examples of legislative text, rules, and practices that conform to the Recommended Practices. The Handbook was originally developed for a workshop hosted by the Merger Working Group in Washington, D.C., attended by nearly 100 delegates from 35 jurisdictions. In the coming year, the Merger Working Group will explore prospects for substantive convergence.

This year's anti-cartel work included an examination of the obstruction of cartel investigations, an evaluation of electronic evidence-gathering techniques, development of tips for an effective leniency program, and a review of the interaction of private and public enforcement. During the past year, the Cartel Working Group also held a successful enforcers’ workshop to share experiences and investigative techniques, attended by enforcers from nearly 30 jurisdictions. The annual event was initiated by the Antitrust Division in 1999.

A working group devoted to examining antitrust enforcement in telecommunications presented a report that focused on the enforcement and advocacy role of antitrust authorities in the sector. The working group assessed such issues as the impact of technological advances on enforcement, impediments to competition, and the interaction between antitrust agencies and sector-specific regulators. The group also developed suggested best practices for competition agencies for effective enforcement and advocacy in the sector.

The Competition Policy Implementation Working Group addressed ICN initiatives to assist newer antitrust agencies in developing economies. The group presented reports on assessing technical assistance programs, business outreach programs, lessons learned by new agencies, the relationship between antitrust authorities and the judiciary and a pilot consultation/partnering program among ICN members.

Continuing a commitment to promote the implementation of the ICN’s work product, one conference panel showcased the agencies’ progress in implementing the ICN’s Recommended

Practices for Merger Notification and Review Procedures, the ICN Merger Remedies Study, and use of the cartel materials and workshops. Although the Recommended Practices are non-binding, in the past four years more than half of the ICN members with merger laws have made or proposed changes to their merger control systems to bring them into greater conformity with the Practices, reported Maria Coppola Tineo of the FTC’s International Antitrust Division in her remarks. Agency members also reported that the ICN’s anti-cartel work and annual enforcer workshops have inspired practical changes, from the design of new leniency programs to improved investigative techniques.

In October 2001, the Federal Trade Commission and the Department of Justice joined with 13 antitrust agencies around the world to create the ICN, which now includes almost every antitrust agency in the world. The ICN has two main goals — to promote greater substantive and procedural convergence among antitrust authorities toward sound competition policies, and to support new antitrust agencies both in enforcing their laws and in building strong competition cultures in their countries.

ICN documents are available at www.internationalcompetitionnetwork.org.

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