The Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN) recently issued a report based on a survey of competition agencies regarding international cooperation.1 Questionnaires were sent to the 120 competition agencies in the ICN, of which 57 replied. The Report is based on 55 of those responses—31 from OECD members,2 13 from OECD observer countries,3 and 11 from non-OECD members.4

The Report made detailed findings and recommendations, and drew the following overall conclusions:

  • The majority of competition agencies surveyed consider international cooperation to be a policy priority. Many agencies see cooperation broadly, “as a way to build enforcement capacity, exchange experiences, and share methodologies,” whereas others, generally the more experienced agencies, pursue cooperation to “facilitate investigations by exchanging case-specific information and evidence and providing each other with investigatory assistance.”5 The Report concluded that agencies “share the objective of avoiding conflicting outcomes, and, when possible, coordinating remedies.”6
  • Of the agencies that had reported having enough experience to answer the question, 98% found that international cooperation was useful to their enforcement strategies.7 Informal cooperation was viewed especially favorably, including consultation regarding investigative timeline, the theory of harm, potential remedies in the case of merger reviews, and simple exchange of information.8 Most agencies thought that, particularly in the long term, the benefits of international cooperation outweighed the costs, including resources expenditure and time restraints.9
  • Competition agencies rely upon different legal bases for international cooperation. Bilateral competition agreements and confidentiality waivers are available to the largest number of agencies, followed by cooperation-specific national law provisions.10 Formal instruments for cooperation, such as comity provisions and notification mechanisms, are widely available, but used only by a limited number of agencies.11
  • Outside of regional cooperation, the Study found that frequent or regular experience in international cooperation appears to be concentrated among a few, more experienced, agencies.12 Fifty-two percent of the respondents reported some experience with international cooperation, excluding regional cooperation.13 Experience with international cooperation has increased significantly in the last five years, however, and is expected to continue increasing.14 The highest number of cases involving international cooperation have been within the merger review context.15
  • Regional cooperation is common in many parts of the world.16 Two-thirds of respondents identified themselves as belonging to a regional network.17 However, regional networks differ considerably. The two broad categories of regional networks are “i) platforms that provide competition-specific rules for cooperation in enforcement, and ii) fora for general policy discussions on common regional issues, and exchanges of experiences.”18 Participants in regional networks identified specific advantages of regional cooperation, which are seen as contributing to increased effectiveness of competition enforcement.19 A few examples of regional networks include the European Competition Network (ECN), the Nordic Alliance (which includes the competition agencies of Denmark, Finland, the Faroe Islands, Greenland, Iceland, Norway and Sweden), the Central European Competition Initiative (CECI), and the Caricom (Caribbean Community) Competition Commission (CCC).
  • The survey found that legal impediments to international cooperation, including limits placed on the agencies by their legal systems, differing legal standards among countries, and other differences/inconsistencies among legal systems, were considered important. They were more frequently encountered than practical limitations, including lack of time and resources, low willingness to cooperate, and being at different stages in procedures.20
  • The exchange of information, particularly confidential information, is important to international cooperation among competition agencies.21 Many agencies identified communication in this regard as an area for improvement.22 Agencies are in a difficult position, because “confidentiality rules are fundamental components of an agency’s ability to obtain information,” but at the same time, legal frameworks that prevent that information from being shared among agencies make international cooperation less effective.23 In fact, according to many respondents, “legal limitations information and evidence are the primary impediment to international cooperation.”24 Agencies continue to exchange non-confidential information frequently.25 Agencies can also utilize confidentiality waivers in some instances.26 More than two-thirds of respondents are allowed to use waivers, and experiences with waivers have generally been positive.27 The availability of confidentiality waivers in cartel cases is often contingent upon whether the party under investigation has applied for amnesty / leniency.28 The Report concludes that the use of waivers is not as broad as it could be.29

The Report also concludes that agencies would be incentivized to increase international cooperation if there was an “increased awareness of the benefits” and if “a clear legal and institutional setting” for cooperation was adopted.30