Canada’s contribution to the 11th OECD Global Forum on Competition, held last week in Paris, is now available online: Improving International Co-operation in Cartel Investigations – Global Forum on Competition – Contribution from Canada
Overview
The Global Forum on Competition included discussions on:
Commodities and price volatility:
“This full day session will start with an overview of recent price volatility; discuss its causes and present recent OECD work. Substantive discussions will draw on expert analysis and on the experiences of competition authorities. The day will culminate in a distillation of practical suggestions for competition authorities when faced with issues in these markets.”
Improving international co-operation in cartel investigations:
“This session will examine how the existing frameworks for international cooperation in cartel investigations could be modified or improved. The roundtable will also explore how international co-operation works in other fields, such as bribery, tax and money laundering, to see if any practices can be extrapolated to cartel enforcement.”
State-owned enterprises and competitive neutrality:
“This session will allow participants to hear the preliminary findings of the Report on Competitive Neutrality which is under preparation by the OECD as well as to present country experiences with competitive distortions resulting from an uneven playing field in markets where public undertakings co-exist with private competitors.”
Speeches included remarks by Pascal Lamy (WTO Director General), Otaviano Canuto (World Bank Vice-President), Angel Gurria (OECD Secretary-General) and Frederic Jenny (Chairman of the OECD Competition Committee).
Participating Countries
Participating countries included
Australia, Brazil, Bulgaria, Canada, Chile, Colombia, Croatia, Egypt, France, Germany, India, Indonesia, the EU, Japan, Kazakhstan, Kenya, Latvia, Lithuania, Mauritius, Mexico, Morocco, Namibia, New Zealand, Pakistan, Peru, Philippines, Romania, Russia, Senegal, Singapore, Taiwan, Tunisia, Turkey, the UK, Ukraine and the United States.
Highlights of Canada’s Contribution
Some of the highlights of Canada’s contribution (Improving International Co-operation in Cartel Investigations) include:
A general emphasis on global enforcement cooperation:
“In today’s globalized economy, it is essential that competition enforcement transcend national boundaries to protect the benefits of competitive and honest markets. The borderless workplace for competition enforcers has prompted the Canadian Competition Bureau to engage in a broad array of activities to encourage increased collaboration within a global network of enforcement agencies. This is particularly the case with respect to those agencies committed to the detection, investigation, and prosecution of international cartel activity.”
Convergence in legislation, policies and practices, including immunity programs:
“In addition to the case-specific benefits realized, the lessons learned from increased collaboration have contributed to the convergence of legislation, policies, and practices. The international convergence of immunity and leniency programs is one example of a developing coherence in the international framework for competition enforcement. There is a growing readiness among jurisdictions to consider their competition legislation and practices through the prism of international enforcement cooperation.”
Impacts of the amended Competition Act on increased cooperation:
“This modernization of law and policy enhances the Bureau’s ability to cooperate with foreign competition agencies and coordinate international cartel investigations, providing Canada with a more productive and effective cartel enforcement regime. Furthermore, increased cooperation and coordination will enhance the predictability regarding the manner in which these types of enforcement matters are assessed for businesses operating within the North American market.”
International enforcement cooperation agreements:
“International cooperation agreements and arrangements relating to the application of competition law foster a culture of cooperation among participating agencies. They provide formal mechanisms that expressly favor the exchange of information and formal notifications, except where prohibited by law or contrary to important domestic interests. Under such agreements, parties recognize the value of minimizing conflict and carefully considering one another’s interests at all phases of their enforcement activities. Canada currently has 11 international agreements, arrangements, or memoranda of understanding covering 10 jurisdictions.
The Bureau may also rely on Canada’s Mutual Legal Assistance Treaties (“MLATs”) to seek evidence of criminal activity located in other jurisdictions. The MLAT and its enabling statute, the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”), permits law enforcers, including competition agencies, to request formal assistance in obtaining and transmitting evidence relating to criminal matters, for example, by providing documents or executing requests for search and seizure. To date, Canada has entered into more than thirty such treaties.
MLATs are a useful tool when evidence is located abroad and/or foreign counterparts are unable to share information under less formal mechanisms. To date, the Bureau has used MLATs to seek evidence located outside of Canada in 10 investigations and has responded to 6 MLAT requests to provide evidence relating to cartel investigation to foreign agencies.”
Informal cooperation:
“The Bureau engages in extensive informal cooperation with foreign agencies. Senior management hold regular bilateral meetings with their counterparts in several jurisdictions, including the United States, the European Union, Australia, New Zealand, and Japan, to discuss case-related issues such as investigative steps, timing, and settlement approaches. Communication is not restricted to senior management, as Bureau investigators routinely coordinate enforcement actions with their counterparts in other agencies; however, legal barriers may, in certain circumstances, limit the Bureau’s ability to share information. In the 2010-2011 fiscal year, the Bureau engaged in informal cooperation with 9 jurisdictions.”
Emerging issues and the Bureau’s “intelligence network” and profiling product markets:
“An emerging tool for increasing international cooperation is proactive intelligence gathering. The Bureau recognizes that an important means of deterring cartel behavior is to increase the likelihood of detection. In addition to relying on its Immunity and Leniency Programs to disclose the existence of a cartel, the Bureau proactively profiles product markets that are subject to cartel investigations outside of its borders, with a view to detecting, and ultimately deterring, similar conduct in Canada.
With respect to cooperation and information sharing between agencies, the potential posed by developing intelligence and leads on cartel activity has not been fully realized. Even merely furthering the exchange of publicly available information (e.g., information that can be obtained by any interested party without legal restrictions) would be beneficial, as agencies commonly limit information and announcements on their websites to significant case developments, such as case resolutions. The benefits of exchanging publicly available information are demonstrated by the International Consumer Protection and Enforcement Network (“ICPEN”).
Agencies that participate in ICPEN share comparatively more information than non-participants. With that in mind, the Bureau explored the creation of an intelligence network with competition agencies in other jurisdictions, but had limited success owing to resource constraints, confidentiality constraints and differing legal enforcement regimes across agencies. There is potential for more work to be done in this area, particularly with respect to sharing publicly available information among foreign agencies. The European Competition Network has had success in exchanging intelligence among agencies. Their experiences could be considered as part of a benchmarking exercise for any future developments in this area.”
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