DOJ’s international antitrust policy head leaves legacy of due-process commitments

29 July 2019 8:27am

25 July 2019, by Max Fillion

After nearly two years of service, the US Department of Justice’s international antitrust policy chief left his post yesterday to return to his professorship at Notre Dame Law School. In his wake are commitments from over 70 — and counting — foreign competition agencies to adhere to minimum due-process standards he played a key role in developing.

“It was a remarkable achievement to be able to have a strong document negotiated in a matter of months instead of years,” Roger Alford, the DOJ’s former deputy assistant attorney general for international affairs, told MLex in an exit interview.

Alford’s replacement is Rene Augustine, MLex has learned. She will take over as acting deputy until the necessary paperwork is finalized, according to a DOJ spokesperson. Augustine currently serves as senior counsel to Assistant Attorney General Makan Delrahim. Before joining the DOJ, she encountered antitrust issues while serving as senior counsel to the US Senate Judiciary Committee for more than seven years.

She first worked with Delrahim during his time on the Senate Judiciary Committee. The two also overlapped in White House Counsel’s office, where Augustine served as President Donald Trump’s Special Assistant and Senior Associate.

On Augustine’s qualifications, Alford said she developed useful diplomatic skills on the Hill and while molding antitrust policy with Delrahim at the DOJ. She had to engage with constituencies on broad policy questions, and that process mirrors international policy development, Alford said.

“You’re just exporting and addressing policy concerns on the international stage,” Alford said. “It’s a diplomatic position in a lot of ways. And I think she’s skilled at that. That’s one of the main reasons, I think, that he chose her.”

Augustine, who declined to comment on her promotion, has a few tall tasks ahead of her. She’ll play a major role in facilitating the 2020 International Competition Network Conference, during which representatives from 104 competition agencies will flock to Los Angeles for the first ever annual ICN meeting in the US. Alford said she has a few other priorities but didn't specify. She’ll share them “in due course,” he said.

MFP

Perhaps Augustine’s greatest challenge will be overseeing the implementation of the Framework on Competition Agency Procedures, or CAP, a series of commitments to due process in antitrust enforcement proceedings that represent Alford’s crowning achievement during his time at the Justice Department.

The idea of an international agreement on minimum standards for due process in antitrust enforcement was first posed to him by Delrahim — who held Alford’s role in President George W. Bush’s administration — during a private conversation that occurred around the time his appointment to antitrust chief was announced in March 2017. Alford believes Delrahim tapped him because of his experience with international law, and thought he was fit to oversee the AAG’s due process initiative.

The recent proliferation of competition agencies around the world highlighted a need for such norms, Alford said.

“More and more, we were seeing situations where companies were facing disparate treatment around the world for the same type of conduct,” Alford said. “There had been a lot of efforts to promote convergence on the substance of competition enforcement, but we felt like there was a real need to try to promote greater convergence on procedures as well.”

Delrahim first publicly announced the initiative, dubbed the Multilateral Framework on Procedures in Competition Law Investigation and Enforcement, or MFP, during a speech in June 2018. He urged competition authorities to go beyond soft commitments to due process and sign a multilateral agreement that included mechanisms that encouraged compliance. After the announcement, the DOJ drafted the text of the MFP with input from many of the world’s major competition agencies, including the EU, Canada, UK, Australia, Brazil, Germany and Japan.

But even with international input, the MFP wasn’t exactly welcomed with open arms. Margarethe Vestager, the European Union’s antitrust czar, said harmonization of antitrust standards should be implemented under existing bodies, like the ICN or the Organization for Economic Co-operation and Development. Soon, both the German and Brazilian competition authorities said the ICN would be the best forum for implementing such norms.

Alford said his international counterparts were quite receptive to the substance of the MFP from the beginning. The only question was, according to Alford, “where should we do it?”

“There was a realization that the OECD only has approximately 35 members and we wanted to have it be open to everyone and so the ICN was the more logical place to put it if it was going to go within” an existing body, Alford said.

What resulted was the CAP, which was approved by the ICN in April 2019. The commitments include a right to legal representation for enforcement subjects, a right to appeal an enforcement action to an independent adjudicative body and a prohibition on discriminating against enforcement subjects from other jurisdictions.

Those commitments are subject to three compliance mechanisms, Alford said. Agencies must submit templates of their competition enforcement procedures to the body, which are published on the ICN’s website. And participants can hold sessions dedicated to reviewing the framework and its implementation, as well as discussing whether to modify its principles. The agreement also allows for consultations between authorities regarding their due process commitments.

Alford said he’s “absolutely” satisfied with the CAP, and that it adopts much of what was proposed in the MFP, including the three major review mechanisms outlined above, which Alford said the DOJ insisted "be included if we were going to support it.”

“I mean, literally, the draft that we proposed in the fall of 2018 was almost identical to the draft that was adopted by the ICN,” Alford said. “There was little change to the substantive norms and little change to the review mechanisms… Frankly, we were nervous when this was being negotiated within the ICN that this would be diluted or delayed, and neither of those happened.”

Alford said there are more than 70 founding members of the CAP, and more have signed since then. Even more authorities are going through the process of getting approval to sign on from their respective governments, and the ICN’s website will soon be updated to reflect the new numbers, Alford said.

In the coming years, Alford said it will be interesting to see how the agreement is implemented. It was written to reflect current practices of all the major competition authorities, so he believes many agencies already adhere to the agreements.

“It might be that there are some agencies that are younger, that are less mature that are going to have to sort of build out some of their procedures,” Alford said. “I would think for them, they’ll just have to sort of look and see how other agencies do things and have a dialogue about that.”

The China Question

Despite his successes, the returning law professor will leave one box unchecked: China has yet to sign onto any sort of due process commitment for competition law, despite being urged to do so.

Though China’s State Administration for Market Regulation is not a part of the ICN, the agreement allows non-ICN members to sign onto the commitments. China could also sign onto the MFP, which Alford said still exists as an option for countries that cannot join CAP because it’s inside the ICN. But Alford did not give any update on where China was leaning. In May, a senior Chinese antitrust official said they are “actively considering” joining the ICN or the MFP.

“The negotiations are ongoing,” Alford said.

But he’s not worried about China’s potential absence. He believes, “based on a variety of sources,” they’re working on complying with everything in the CAP — even if they may not join it.

“I think the CAP reflects international minimum standards,” Alford said. “They would, I think, have an interest and a desire to try to make sure that they’re in compliance with something that everyone recognizes is fundamental due process.”

ABA 2019