US Antitrust Enforcers Enhance Ability to Investigate International Cartels by Joining Multilateral Assistance and Cooperation Framework
On September 2, 2020, the US Federal Trade Commission and the Department of Justice entered into a Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (the “Framework”) with antitrust enforcement agencies in Australia, Canada, New Zealand and the United Kingdom. The Framework consists of a memorandum of understanding stating its signatories’ shared goal to reinforce and improve on existing cooperation, as well as a model agreement that the signatory agencies can use as a basis for negotiation of bilateral or multilateral cooperation agreements.
The “Five Eyes” History of Cooperation on Antitrust Investigations
Cooperation between the United States, the United Kingdom, Canada, Australia and New Zealand—sometimes called the “Five Eyes” nations—is nothing new. Since the 1980s, these countries have cooperated with one another concerning merger investigations and other antitrust matters. Beginning with the 1991 Agreement Between the Government of the United States and the Commission of the European Communities Regarding the Application of Their Competition Laws (the “EU-US Agreement”), the United States and other nations agreed to (1) notify cooperating authorities of enforcement actions that relate to any of the other signatories’ countries (2) set out principles for coordinated antitrust enforcement and (3) develop a framework for addressing the adverse impacts of anticompetitive conduct. Canada reached a similar agreement with the US antitrust enforcement agencies in 1995. Then, in 1999, Australia and the United States entered into an agreement to coordinate antitrust enforcement efforts.
The Framework complements and builds on the prior, extensive cooperation between the US antitrust agencies and their foreign counterparts. Competition enforcers routinely exchange information with one another via informal requests, bilateral agreements and mutual legal assistance treaties (“MLATs”). Competition enforcement agencies frequently use these information exchanges to investigate international cartels and mergers. Antitrust agencies also frequently interact with one another through the International Competition Network and the Organization for Economic Cooperation and Development. As US Assistant Attorney General Makan Delrahim explained, “The Framework sets a new standard for enforcement cooperation, strengthening our tools for international assistance and evidence gathering in the increasingly digital and global economy.”1
To that end, the memorandum of understanding broadly provides that signatories to the Framework are expected to cooperate by sharing information, coordinating investigative activities and facilitating witness interviews, as well as providing “other cooperation and assistance as requested.” Likewise, the model agreement addresses four substantive areas: (1) the nature of assistance requested, (2) the process for making a request for assistance, (3) confidentiality protections for the investigative information and (4) the scope of permitted use of any investigative information shared by the participants. For example, the model agreement contemplates “investigative assistance,” including (a) disclosing, providing or discussing non-public information related to an investigation and (b) obtaining investigative information, such as taking statements or testimony, providing documents or information, locating people and executing searches and seizures.
Under the model agreement, when one of the signatories requests assistance, it must describe the “nature of the investigation or proceeding to which the request relates.” Once a signatory receives such a request, it is required to act on the request in a timely manner. Importantly, the model agreement contemplates that, unless precluded by applicable law, the responding party will provide assistance regardless of whether the underlying conduct would violate that nation’s competition laws. Both the information provided and the request for assistance itself are to remain confidential unless the responding party consents to the information being used for other purposes.
The Framework states that it does not create any third-party rights for private persons. This provision may potentially exclude judicial challenges brought against the provision of investigative assistance (or for inadvertent disclosure by an investigating authority of the investigation) and actions to enforce the Framework’s procedural protections. If effective, this clause could prevent businesses and individuals facing an antitrust investigation from relying on the Framework to exclude privileged communications or from pursuing relief for harm caused by such inadvertent disclosures.
The Framework is a clear signal that the “Five Eyes” nations will continue to enhance their ongoing cooperation on cartel and merger enforcement investigations. The Framework may also spur more cooperation between US antitrust enforcers and competition agencies in other jurisdictions. Companies and individuals facing an investigation by one jurisdiction can expect that the inquiry may expand to other countries. They can also expect that competition agencies will continue to coordinate with one another in increasingly close and effective ways. Whether this cooperation results in shorter investigations, greater efficiencies for the parties responding to them or the filing of more cases in multiple jurisdictions (at or at about the same time) remains to be seen.
1 Press Release, US Dep’t of Justice, Antitrust Division, Assistant General Makan Delrahim Signs Antitrust Cooperation Framework With Australia, Canada, New Zealand, and United Kingdom (Sept. 2, 2020), https://www.justice.gov/opa/pr/assistant-attorney-general-makan-delrahim-signs-antitrust-cooperation-framework-australia.