The Antitrust Division of the United States Department of Justice (“DOJ”) recently announced that it will spearhead an effort to create a new international antitrust enforcement framework.1 At a June 1st discussion before the Council of Foreign Relations, Makan Delrahim, Assistant Attorney General for the Antitrust Division, indicated that the DOJ, in conjunction with U.S. Department of State, the Federal Trade Commission, and other antitrust competition agencies around the world will launch what has been dubbed the Multilateral Framework on Procedures in Competition Law Investigation and Enforcement, or MFP for short.
According to Delrahim, the goal of this voluntary framework is to better encourage corporate compliance through stronger procedural fairness, particularly as mergers become more complex. In recognizing that over 140 different competition agencies exist worldwide and that norms vary across countries and regions, the objective behind the MFP is to identify procedural standards that are truly universal. Delrahim indicated that the new framework will work to bridge the differences between countries of different sizes and those operating under different legal systems.
“Our shared vision is a multilateral framework that is open to all competition authorities, reflects fundamental due process recognized by almost every competition authority, enhances and extends the work of international organizations, and incorporates meaningful mechanisms to secure compliance.”2
To draft the framework’s principles, the DOJ reviewed multiple competition chapters in major trade agreements, as well as guidelines and recommendations on procedural fairness from the Organisation for Economic Co-operation and Development (OECD) and International Competition Network (ICN).3 Through that effort, the DOJ and its counterparts were able to identify 12 core values that will serve as the framework’s basis. The newly formed MFP will set common principles when it comes to due process commitments regarding non-discrimination, transparency, timely resolution, confidentiality, conflicts of interest, proper notice, opportunity to defend, access to counsel, and judicial review.
The MFP as it stands is not a formal treaty, but rather an agency-to-agency arrangement, uniquely situated to foster compliance in market competition enforcement. Though there is no formal dispute settlement mechanism, there will be incentives for countries to comply. To that end, the MFP is set to be discussed and finalized in Paris later this week. Delrahim will formally extend an invitation to the 140 various competition agencies to sign onto the framework. He expressed hope that all agencies will sign on, and that the reputational blowback of not signing will encourage even reluctant competition agencies to accept the new framework.