John Fingleton

Office of Fair Trading

The International Competition Network (ICN) is an informal, virtual network of 114 competition enforcement agencies from 100 different jurisdictions. The work of the network is organised through a range of projects overseen by specialist working groups. Our member agencies work with one another, as well as non-governmental advisers (NGAs) from the legal, economic, academic, business and consumer communities. The discussions that result foster the exchange of ideas and feed into our work products. The network’s output takes the form of best practices, toolkits, guidance materials, legislative templates and handbooks, as well as experience-sharing workshops around the world.

This year, the ICN celebrates its 10th anniversary. As it stands on the cusp of its second decade, this is a fitting moment for the network to reflect on what it has achieved and where it is going. To that end, the ICN has been conducting a wide-ranging consultation with its members and NGAs about the direction, organisation and long-term vision of the network.

The ICN’s original purpose was to ‘encourage the dissemination of antitrust experience and best practices, promote the advocacy role of antitrust agencies and seek to facilitate international cooperation’. Discussions over the past few months have shown that ICN members believe that those aims remain as valid now as they were 10 years ago.

Moreover, the ICN can be proud of the degree to which it has fulfilled that mission so far. From our recommended practices on merger notification and review procedures, which were cited by a number of authorities as having played a role in initiating or shaping their merger control reform efforts, to our work on cartel leniency policy, the ICN has had a tangible impact on the way that competition enforcement is carried out around the world.

When the ICN asked its members what aspects of the network they found to be most valuable to their work, by far the most common response was that opportunities for experience-sharing and relationship-building were the key benefits.

However, the ICN cannot rest on its laurels. Looking to the future, it will this year set out its long-term vision and strategy for the years to come. International competition law and policy continue to evolve and it is important that we are both adapting to these changes and, where appropriate, providing intellectual leadership. Competition authorities around the world are facing budget restrictions and demands to do more with less. Innovative business models, together with ever-greater volumes of cross-border transactions, are creating new challenges for enforcement agencies. For the foreseeable future, convergence, appreciation and cooperation provide the best prospects for addressing these challenges.

This developing global landscape also presents new opportunities for our network. In seeking to define its vision for its second decade, the ICN will focus on those areas where greater convergence is both necessary and feasible.

Additionally, feedback from member agencies and NGAs suggests that key priorities for the network should include expanding the ICN’s inclusiveness and ensuring that smaller and newer agencies are able to participate and benefit as much as possible.

We are therefore looking to optimise the ICN’s governance structure to maximise continuity and inclusiveness and ensure that the network is well placed in future to meet the needs of all of our members, and to serve the interests of consumers in each of our jurisdictions.

The input of younger agencies and those in emerging and newly industrialised economies is critical and the ICN must rise to the challenge of meeting the needs of an increasingly diverse group of agencies. At the ICN annual conference in Istanbul last year, it was noted that developing and newly industrialised economies were beginning to find a voice within the ICN. The network’s agenda is increasingly being driven by the membership more broadly. We are also looking to broaden NGA participation from outside North America and Europe. NGAs make a valuable contribution to the ICN’s work, bringing new perspectives to bear and lending it additional legitimacy.

The outcomes of all these debates will be announced at the 2011 annual conference.

Alongside all this, though, the ‘bread and butter’ work of the ICN continues apace and our current workload maintains the network’s tradition of creating high-quality, relevant and practical work products.

The work of the ICN in 2010-11
The ICN’s ninth annual conference was held in Istanbul in April 2010 and was hosted by the Turkish Competition Authority. The conference was attended by some 500 participants from more than 80 competition authorities around the world. The 10th annual conference will be hosted by the Netherlands Competition Authority (the NMa) in The Hague in May 2011.

Cartel Working Group
The mandate of the Cartel Working Group is to address the challenges of anti-cartel enforcement, both domestically and internationally, across the entire range of ICN members and among agencies with differing levels of experience. At the heart of antitrust enforcement is the battle against hardcore cartels directed at price-fixing, bid-rigging, market-sharing and market allocations. The working group addresses cartel enforcement policies and legal issues and exchanges best practices.

In October 2010, the Cartel Working Group held a workshop in Yokohama, Japan which addressed, among other things, leniency, investigation methods, prosecutions, settlement and sentencing.

Ongoing work in the Cartel Working Group includes a project to explore member practices in areas such as effective public messages, innovative outreach efforts, training for procurement officials and partnership initiatives with the private bar and business community. The working group is also adding to the ICN Anti-Cartel Enforcement Manual by addressing the topic of case resolution, compiling a good practices summary and updating the ICN’s records of member jurisdictions’ rules and procedures in the cartel enforcement field.

Merger Working Group
The aim of the Merger Working Group is to promote the adoption of best practices in the design and operation of merger review regimes in order to: (i) enhance the effectiveness of each jurisdiction’s merger review mechanisms; (ii) facilitate procedural and substantive convergence; and (iii) reduce the public and private time and cost of multi-jurisdictional merger reviews.

In November 2010 the Merger Working Group held a workshop in Rome on merger review analysis, procedures and investigative techniques.

The working group is currently conducting a comprehensive assessment of the use and impact of its existing work products and potential barriers to work product use or implementation, as well as evaluating new areas of work that would assist members in making merger review more effective.

Based on the outcome of this assessment, the working group will consider improving or updating existing work product, new or improved means of promoting awareness and use of the group’s work product, and additional work that will meet the needs of and engage a broad constituency of ICN members.

Unilateral Conduct Working Group
The primary objectives of the Unilateral Conduct Working Group are to examine the challenges involved in addressing anti-competitive unilateral conduct of dominant firms and firms with substantial market power, to facilitate greater understanding of the issues involved in analysing unilateral conduct and to promote convergence and sound enforcement of laws governing unilateral conduct.

The Unilateral Conduct Working Group held its workshop for 2010 in Brussels in December, which was attended by over 150 delegates from 55 jurisdictions. The group also hosted a teleseminar on unilateral conduct in the pharmaceutical industry.

The working group is also engaged in producing a workbook based on the group’s existing work, including recommended practices on the abuse of dominance as well as reports on the objectives of unilateral conduct laws, the role of state-created monopolies and the assessment of dominance.

Advocacy Working Group
The Advocacy Working Group aims to develop practical tools and guidance, and to facilitate experience sharing between ICN member agencies, in order to improve the effectiveness of ICN members’ advocacy activities.

During the past year, the working group has prepared a draft market studies good practice handbook as well as an online database (information store) of market studies conducted within the past five years by 34 participating ICN member agencies.

The Advocacy Working Group is currently road-testing the handbook and market studies information store and continuing its programme of experience-sharing teleseminars. The group is also engaged in updating the ICN toolkit for effective advocacy and has set up a facility on the ICN website for member agencies and participating NGAs to post information on their advocacy activities.

Agency Effectiveness Working Group
The mission of the Agency Effectiveness Working Group is to identify key elements that contribute to successful capacity building and competition policy implementation. The working group examines a variety of factors determining the ability of competition agencies to achieve their objectives in an efficient and effective way.

In July 2010 the Agency Effectiveness Working Group held a workshop in London which allowed agency heads to discuss their experiences and advice for running effective enforcement agencies, focusing on people and knowledge management and leadership issues.

The working group continues to develop its Competition Agency Practice Manual, with a completed chapter on strategic planning and prioritisation, and draft chapters on effective project delivery and knowledge management in progress.

Steering Group vice chairs
The vice chair for advocacy and implementation (VC A&I) is responsible for developing and, with ICN Steering Group approval, implementing a work plan to promote and advocate the use of ICN work product by competition authorities throughout the world. To this end, the VC A&I recently compiled a catalogue of ICN work products. The ICN is increasingly focusing on promoting implementation and use of its work product, through efforts to measure implementation and use of existing work product and to identify and address barriers to implementation in future. The VC A&I is also responsible for the Advocacy and Implementation Network (AIN) and the Advocacy and Implementation Support Programme (AISUP), which encourages the use of ICN products for capacity-building and technical assistance. Further, the VC A&I monitors competition law and policy developments in ICN member jurisdictions.

The aim of the vice chair for international coordination (VCIC) is to develop and implement a work plan to coordinate the work of the ICN with that of other international organisations in a way that meets the needs of ICN members in terms of outreach, advocacy and implementation. The VCIC is currently working on exploring potential sources of overlaps and possible synergies between the ICN and other international organisations. In 2010 the VCIC launched a pilot collaboration whereby the ICN will support the World Bank in a competition assessment of the haulage industry in the East African Community, through sharing ICN members’ expertise in competition advocacy, market studies and proposals for the removal of anti-competitive regulation.

The vice chair for outreach is responsible for developing and, with Steering Group approval, implementing a work plan to engage ICN member agencies and NGAs from ICN member jurisdictions in the activities of the ICN (eg, workshops, working groups, annual conferences), to encourage use of ICN work products and adoption of ICN best practices, and to ensure that the diversity of views and interests of ICN members are represented. The vice chair for outreach is also leading a project to create a comprehensive online curriculum of training materials. This will serve as a virtual university on competition law and practice for competition agency officials. Training modules, consisting of video lectures and accompanying materials from a diverse group of international academics and practitioners, will provide an online interactive educational centre for competition authorities from around the world. All of these materials will be publicly available with no charge for access. ICN members are currently working on a pilot project which, subject to input from members and NGAs, will be expanded over the next year.

The ICN’s second decade
The ICN is developing its long-term vision and strategy on the basis of the feedback it has received from its members of the past year. What is already clear from our second decade consultation is that members want the ICN to foster increased international convergence, cooperation and learning in future. In mapping out the ICN’s priorities over the next decade we therefore need to look at the gaps in global competition enforcement and consider whether the ICN is well placed to close some of those gaps.

This work is being taken forward within each of the working groups and by members of the ICN Steering Group. The results of the work will be presented in May 2011 at the ICN annual conference in The Hague.

The ICN remains an indispensable feature of the international competition landscape. I am confident that the next year - and the next decade - will see the ICN continue to go from strength to strength.

Office of Fair Trading