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Globally, antitrust authorities are maintaining their focus on international cartels, intensifying their investigatory powers and coordinating their investigations worldwide. Corporate fines, criminalisation and follow-on litigation are increasingly common. With over 100 countries now having laws specifically targeted at price fixing, market sharing and other cartel-like practices, managing multi-jurisdictional investigations requires careful risk management and planning.
Corporate internal and external counsel will have to consider and address the multi-faceted and inter-related risks to a company and its executives and employees, which frequently go beyond the immediate competition law issues in one jurisdiction.
It is important to examine up front the risk management issues for the effective handling of an international cartel investigation.
The 7 step process to an effective international compliance programme
It is the case that more rigorous enforcement practice and the increasing spread of leniency programmes are rendering detection of anti-competitive agreements more likely.
Some businesses may intentionally take the risk of infringing competition whereas others may do so unintentionally through negligence or insufficient awareness of the risk. The European Commission takes the position that neither ignorance nor negligence will be a satisfactory excuse.
The best way to avoid infringement is to adopt an effective compliance programme.
According to international best practice and taking into account guidance from different national competition authorities worldwide, the following are typically recognised as the basic elements for an effective competition compliance programme:
(1) support of senior management;
(2) development of a competition law compliance policy that is aligned to the company’s risk profile and market position;
(3) implementation of the programme through continuing education of employees;
(4) establishing clear procedures for maintaining compliance and detecting and sanctioning breaches;
(5) competition audits to identify the degree of risk exposure;
(6) coordination and integration of competition compliance with other areas of compliance and across all areas where the company does business;
(7) creating systems to continuously monitor compliance.
Amongst the specific factors to take into account when preparing international compliance programmes are the following:
An increase in cooperation between authorities worldwide requires implementation of effective and integrated global compliance programmes that are sensitive to the needs of the organisation and the specific risks it faces, wherever it does business. Insights that companies have gained internationally can be useful when grappling with the evolving compliance challenges and integrating those efforts worldwide.
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