An International Due Process Standard for Competition Adjudication? A Critical Approach

With the global proliferation of antitrust law enforcement, multinational businesses, scholars, and practitioners have clamoured for stronger due process protection in competition adjudication. Often, the argument assumes the existence of a due process standard applicable internationally to all competition jurisdictions. The standard comprises certain features typical of adversarial adjudication, including a neutral decision-maker, a live in-person hearing before such decision-maker, and the right to present and cross-examine evidence and witnesses. This paper challenges this alleged due process standard on two different levels by comparing the competition adjudication procedures of the United States Federal Trade Commission, the European Commission, and the Korea Fair Trade Commission. First, the paper shows that such a standard, which advances certain features of Anglo-American adversarial adjudication, is at odds with the local due process laws of the European Union and South Korea. Second, the paper shows that implementing such adversarial features would pose significant practical problems in jurisdictions where existing administrative procedures are largely inquisitorial or ‘continental.’ While the supporters of the due process argument identify a number of procedural problems that should be addressed, framing these problems as a due process issue would only be counterproductive.