Due Process in Antitrust Enforcement: Normative and Comparative Perspectives

Abstract

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law; it can also promote competitive reforms in monopolized sectors and curb corruption. Jurisdictions learn from the best practices in the investigation process, decision-making process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this Article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and substantive rights of the respondent in the investigation process. In conducting evidence review and arriving at punitive decisions, the enforcement agency should establish a separation between investigatory and adjudicatory functions. Finally, the issued punishment decision should contain more comprehensive information and be subject to judicial review.

Keywords: Antitrust, due process, transparency, procedural fairness, judicial review, separation of functions, disclosure of evidence, multilateralism, Anti-Monopoly Committee, Directorate-General for Competition, national competition authority, Federal Trade Commission, Antitrust Division of the DOJ