OPENING KEYNOTE SPEECH : SIR PHILIP LOWE
Philip LOWE (Senior Advisor, FTI Consulting) opened his remarks by recalling the climate at the International Competition Network (ICN) Annual Conference in Cape Town in 2006, where more governments realized that competition was an essential aspect that needed to be enhanced to ensure the well functioning of markets. Lowe emphasized the increasingly important role of the ICN in international cooperation as convergence became more important. He also highlighted the active participation of the US and the European Union (EU) in the debate on China’s competition law, and the positive response by China towards that collaboration. National policy concerns are present in all countries and sometimes are materialized in exemptions from antitrust scrutiny or a different application of antitrust rules. Examples of national policy concerns include media plurality and national security, amongst others. Another concern is the inclusion of industrial strategy in merger policy by governments and parliaments. Lowe stressed that the imposition of only competition or effects-based analysis in competition policy would be difficult and that it is unlikely that a binding legal instrument will be developed to tackle these differences. Against this background, ensuring a greater level of procedural and substantive transparency is surely a prerequisite for convergence. Differences in substantive analysis between jurisdictions are understandable but contrast the parties’ need for convergent remedies. Ideally there should be close cooperation, however diverging national deadlines and substantive laws may prevent this desirable outcome. Convergence on procedural standards such as transparent investigations, adequate rights of defense should be easier to achieve. Lowe added that it would be regrettable if multijurisdictional deals were to be cleared or blocked due to taking into account the popular opinion or support for the transaction. Social media and consumer surveys show that a company’s reputation does not necessarily reflect the way they have handled their deals, therefore close attention should be paid to proper due process and ensuring that conclusions embody the full elements of fact for which controls and an independent ombudsman are crucial. Lowe concluded his speech expressing the need for all countries to renew and reinforce their existing commitment towards the elusive goal of due process.