INTERVIEW : POLITIQUES INTERNATIONALES DE CONCURRENCE - COOPERATION INTERNATIONALE - CONVERGENCE

Rachel BRANDENBURGER, DOJ & Randy TRITELL, FTC: Global antitrust policies - How wide is the gap?

1. What is your view of the current state, and future, of convergence between U.S. and Europe on antitrust policy and approaches? To take one example, there has been a recent outbreak of new – and similar – horizontal merger guidelines on both sides of the Atlantic. Is this merely coincidence or indicative of international convergence at work?

2. For the past decade, multilateral efforts within the OECD and the International Competition Network have promoted the convergence of procedural and substantive rules among agencies as a response to some of the challenges of globalization. What is your view of the status and future of convergence efforts?

3. Linked to the increased level of convergence, agencies increasingly have worked together on specific cases. U.S.-Europe cooperation seems to be functioning smoothly as of late. Are there challenges remaining to effective U.S.-Europe cooperation on cases?

4. More broadly, in a globalized world with many more enforcers reviewing the same conduct or mergers, what considerations help your agency in deciding when, and with which agencies, you cooperate on cases?

5. How do you see your agency’s cooperation with China’s three antimonopoly enforcement agencies developing in the near term? For the U.S., what impact do you think that your new MOU will have on your cooperative relationship with the Chinese agencies?

6. Do transatlantic differences in available cartel sanctions – criminal and administrative systems – create challenges that inhibit cooperation in international cartel cases?

7. Currently, over 50 jurisdictions have cartel leniency programs. How has the proliferation of leniency programs impacted international cartel enforcement?

8. There has been some recent international discussion on whether anti-cartel enforcement efforts are creating the desired deterrent effect in the US and Europe, particularly in light of larger fines and questions about perceived rates of recidivism among cartel offenders. How do your agencies think about deterrence in the cartel actions you bring and sanctions you seek?

9. We have discussed some of the specifics of convergence and case cooperation at the international level. More broadly, what do you see as the changes and challenges that will define the next decade of global antitrust enforcement?

Text is based on a panel discussion with Rachel Brandenburger, Randy Tritell, and Ewoud Sakkers, that was held on 6 September 2011 moderated by Mark Gidley, Partner, White and Case, Washington DC, New York. The answers of Ewoud Sakkers, Head of Unit, DG COMP, could not have been reproduced.

Rachel BRANDENBURGER Special advisor, International, Department of Justice 2010-Present Special advisor, International, U.S. Department of justice, antitrust division 1988-2009 Partner, Freshfields Bruckhaus Deringer LLP; working in the firm’s antitrust, competition and trade group in London and (from 1996 onwards) also Brussels Randy TRITELL Director, International affairs, Federal Trade Commission 2007-Present Director, Office of international affairs, Federal Trade Commission 1998-2007 Assistant director for international antitrust, Federal Trade Commission 1992-1998 Partner in charge of opening and managing the Brussels office of Weil, Gotshal & Manges LLP 1986-1992 Associate, trade regulation department, Weil, Gotshal & Manges LLP, New York 1978-1986 Staff

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Rachel Brandenburger, Randolph Tritell, Rachel BRANDENBURGER, DOJ & Randy TRITELL, FTC: Global antitrust policies - How wide is the gap?, February 2012, Concurrences Review N° 1-2012, Art. N° 41515, pp. 3-11

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