International perspectives on competition law reform

1. International Perspectives on
Competition Law Reform
in Colombia
Krisztian Katona
Counsel for International Antitrust
U.S. Federal Trade Commission
Cali
September 5, 2019
The views expressed herein are those of the speaker and do not necessarily represent the
views of the Federal Trade Commission or any individual Commissioner.

2. Introduction
• 60th anniversary of Colombian competition law
– Recent milestone: OECD accession (CEDEC, 2018)
– Progress and recent developments leading to Colombia
becoming one of the leading antitrust regimes in Latin
America
• Today: antitrust enforcer = global enforcer;
antitrust practice and community = global
• Globalization of antitrust
– International commerce
– More countries adopting competition laws
• Antitrust enforcement and policy cooperation – FTC,
SIC, and other agencies in LatAm and globally 2

3. Outline
• Remarks three main parts:
– Global progress in antitrust cooperation and
convergence
– Key challenges that remain in international
antitrust (ACDC, Cali)
– Thoughts and suggestions on how to address
these challenges
• Path forward in international antitrust – cautious
optimism
– + Colombia’s role and “special responsibility”
in international antitrust 3

4. Progress in International Antitrust Cooperation and Convergence
• Early era of conflict and resistance – base:
concerns with regard to national sovereignty
• Last 30 years – widespread adoption of
competition laws (Colombia: 1992 reform)
• International cooperation
– Bilateral cooperation (U.S. agencies – 15
bilateral agreements, incl. SIC, 2014)
– Multilateral cooperation (OECD, ICN, etc.)
4

5. International Cooperation - Bilateral
• FTC enforcement cooperation in 2018: 43
investigations in which it cooperated with
19 foreign counterpart agencies (incl. SIC)
– Praxair/Linde: Cooperation with 10 agencies
• Policy cooperation, technical assistance
missions (24 in 17 countries in 2018),
international fellows (10 from 7 countries in
2018)
• LatAm cooperation
5

6. International Cooperation - Multilateral
• OECD Competition Committee, GFC,
LACCF, Peru RCC
• International Competition Network (ICN) –
Cartagena conference, May 2019
• UNCTAD
• Focus: convergence on procedural and
substantive issues, important results
• Key point in antitrust convergence:
best practices – better practices 6

7. Challenges in International Antitrust
• Rapidly changing international antitrust
landscape, new issues, learning, digital
economy
• Three key challenges:
– Potential limits on international cooperation
– Procedural fairness and due process issues
– Maintaining a consensus on core competition
values
7

8. Potential Limits on International Cooperation
• Cooperation agreements – enforcement
cooperation can and does take place without
cooperation agreements in place
• Improving cooperation tools – joint
investigations, interviews, work-sharing
• Information sharing
– Waivers of confidentiality
– Second generation agreements
8

9. Procedural Fairness and Due Process Issues
• Investigative processes – many models, but key is
at least basic levels of fairness
– Safeguards rights of parties
– Better-informed agency decisions
• Key focus of international policy fora (OECD,
ICN, APEC, ABA)
• Agency responses – “appropriate level” of
transparency and due process
• But: impact of differences is real, leading to
different outcomes, differing remedies
9

10. Procedural Fairness
• Importance of advocating for procedural
fairness standards that can serve as
international norms of good practice for all
agencies (e.g., informing parties of the
bases of investigations, engagement with
parties, opportunities for discussion,
timetables)
• Differences are real – no one size fits all
• Best practices – better practices
10

11. Consensus on Core Competition Values
• Maintaining a consensus on the proper
function and goals of competition policy
• U.S. Supreme Court: antitrust decisions be
based solely on competition considerations,
not other economic or social goals, however
worthy
• Concerns: industrial policy and other
considerations (economic and social goals)
taken into account in competition decisions
implicitly or pursuant to laws 11

12. Consensus on Core Competition Values
• Consumers and economic development are
best served when competition decisions are
based on an economic analysis of effects on
competition
• If other factors enter into decisions, their
nature and effects should be made more
transparent
• Competition and consumer welfare as core
principles
12

13. Review and Self Assessment – FTC Hearings
• FTC Hearings on Competition and
Consumer Protection in the 21st Century
(2018-19)
• 14 hearings covering a range of issues, over
3000 public comments
• Self examination – goal is to see if any
adjustment of our competition enforcement
and policy approach and tools is necessary
13

14. Colombia’s Role and “Special Responsibility”
• OECD – newest member
• ICN Cartagena conference (May 2019)
• Importance: other newer and developing
agencies in LatAm and beyond look to
Colombia for lessons to learn, e.g.,
– Development of its competition regime
– Institutional framework
– Prioritization of enforcement/advocacy strategies
– Challenges Colombia faced and where it is today
14

15. Role of the Private Sector
• Key role in the development and improvement
of competition policy around the world
• National bar groups, competition law
associations (ACDC, ABA), international
organizations (ICN), chambers of commerce
• Progress and developments of the international
competition enterprise achieved together
• Work in progress – keep pedaling
15

16. Questions?
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