1 TPP Competition Chapter Prepared by the Competition Working Group of the U.S. Business Coalition for TPP This submission, the second from this working group, serves as a short narrative explaining the illustrative edits made to the KORUS competition chapter below. KORUS represents a good starting point for TPP negotiations, but we believe greater progress must be made in order to negotiate a 21 st Century trade agreement that ensures that 1) competition enforcement is conducted in a transparent and fair manner with the aim at promoting economic efficiency and consumer welfare 2) a level playing field exists and that the competitive process is both protected and promoted, while reasonable limits are placed on the state s involvement in the economy through its relationship with SOEs and its support for national champions. Competition Enforcement The KORUS Competition chapter put forward a series of principles and obligations which are important due process provisions in antitrust investigations and enforcement actions. Given that the U.S. has always been seen as a leading advocate internationally for due process and that the provisions in KORUS are general and limited, we have suggested that the TPP Competition Chapter expand and elaborate on the due process provisions for antitrust enforcement. We propose the inclusion of an expanded list of principles and obligations that address specific actions the business community has encountered in its interface with antitrust jurisdictions around the world. Many of the suggested best practices we would like incorporated into the chapter come from OCED and ICN best practices which the USG and other TPP partners have already essentially negotiated. We also strongly believe adherence to due process best practices are in the best interest of the antitrust agencies themselves as it ensures their enforcement actions are viewed as credible, efficient, and effective. Finally, the U.S. Department of Justice Antitrust Division as well as the Federal Trade Commission have recently been advocates internationally for improved due process. This working group in particular would note and applaud the leadership and profile AAG Varney has given to these issues internationally, and believe the TPP competition chapter represents an excellent opportunity to advance that work.
2 Competitive Challenges Related to SOEs & State Privileged Firms The concern is not with state-ownership per se, but with the competitive advantages that can come from the close relationship SOEs often enjoy in connection with the state. However, the concern from the business community is that in a number of growing cases the state may also extend privileges to private sector entities that result in market distortions that impair competition for both foreign and domestic firms not privy to the same relationship. In such cases the state privileges in question might not violate national treatment provisions standard in our agreements and in our proposed red-line we make the need to discipline such privileged relationships explicit. The TPP competition chapter should more effectively limit any influence or benefit, financial or non-financial that the state provides its SOEs or private, but state privileged firms. We suggest this might be accomplished through the following inclusions: o Remove the WTO term in accordance with commercial considerations. This term, while familiar has proven problematic given the limited, short sighted, but unfortunately well established jurisprudence. o Rather than seeking to better define the existing term, we suggest the adoption of a new term, in accordance with its own commercial interest, as well as a corresponding definition that links commercial interest to profit, cost reduction, and efficiency gains. o Restrain SOEs for engaging in anticompetitive conduct that sets price, restricts output, or exclusionary conduct. This language was borrowed directly from the Singapore FTA. o Further, unless explicitly exempted from antitrust enforcement, SOEs should be subject to antitrust laws, merger review, etc. This is something that appears to be bypassed in certain jurisdictions around the world. o TPP countries should be required to operate their SOEs in accordance with the OECD guidelines established for SOE governance. A copy of those guidelines has been attached with this submission. o An expressed commitment to limit assistance from the state to SOEs and private, but otherwise state privileged enterprises, where the advantaged enterprise is otherwise financially stable and commercially engaged in an open and competitive market. o Provide a carve out for governments assistance to failing firms and for legitimate economic development purposes. Such economic development purposes are categorized by those that are offered freely to any interested and qualified company.
3 o Limit the influence (which may not take the form of financial assistance) of the state over its owned enterprises or private, but privileged entities. This language was borrowed and slightly modified from the Singapore FTA. o Encourage the parties to reduce ownership in its owned-enterprise as much as possible. Again the proposed text suggested here was borrowed and slightly modified from the Singapore FTA. With regard to transparency we suggest the KORUS chapter incorporate the text from the Singapore FTA with regard to transparency of state ownership and board members. We also suggest that upon request TPP governments would be required to disclose with each other any financial and non-financial assistance provided to state-owned and private, but state influence enterprises. Finally we have modified and added definitions to the terms necessary to incorporate our suggest changes. This submission is intended to inform TPP negotiators of the interests of the business community and to guide those negotiations. The edits below to the KORUS competition chapter have been drafted for merely illustrative purposes and are not being purposed as written. Finally, these suggestions from the working group represent our latest thinking and may not be representative of our complete thoughts going forward.
4 SUBSTANITVE EDITS TO KORUS ARE HIGHLIGHTED BELOW FOR Illustrative PURPOSES AND TO GIVE A GENERAL DIRECTION TO ACTUAL TEXT THAT NEEDS TO BE DRAFTED CHAPTER SIXTEEN COMPETITION-RELATED MATTERS ARTICLE 16.1: COMPETITION LAW AND ANTICOMPETITIVE BUSINESS CONDUCT 1. Each Party shall maintain or adopt competition laws that promote and protect the competitive process in its market by proscribing anticompetitive business conduct. Each Party shall take appropriate action with respect to anticompetitive business conduct with the objective of promoting economic efficiency and consumer welfare. 2. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws. The enforcement policy of each Party s authorities responsible for the enforcement of such laws is to treat persons who are not persons of the Party no less favorably than persons of the Party in like circumstances, and each Party s authorities intend to maintain this policy. 3. Each Party shall enforce wherever possible its laws against state-owned and privateowned companies in a similar manner, except for where exemptions are granted. 4. Each Party shall ensure its laws are enforced against cartels, including those formed for export purposes, except for where exemptions are granted. 5. Each Party shall seek to avoid imposing unnecessary or unreasonable costs and burdens on merging parties and third parties in connection with merger investigations. [ICN Best Practices] 6. Each Party s authorities shall not issue a public notice of an investigation without first having adequate evidence of anti-competitive conduct. The authorities shall also accompany any announcements about the investigation prior to a final decision with a statement that the investigation does not reflect any finding or decision that the respondent has engaged in the alleged conduct, or that the alleged conduct violates any law. 7. Each Party shall ensure that the burden of proof is on the authorities alleging violations of the competition laws. 8. Each Party shall ensure investigations are conducted and decisions are made in a reasonable, transparent, consistent and determinable time frame. Where investigation periods are not subject to definitive deadlines, procedures should be adopted to ensure that the investigation is completed without undue delay, while allowing respondents
5 adequate time to review all relevant evidence and offer defenses. [Drawn from OECD & ICN Best] 9. Each Party, while striving to be transparent wherever and whenever possible, shall provide for the protection of business secrets and other information treated as confidential under the laws of the reviewing jurisdiction that competition authorities obtain from any complainants, respondents, or third parties at any stage of the investigation process. [Drawn from OECD & ICN] 10. Where each Party s authorities rely on confidential information in the final order, the authorities shall provide limited access to such confidential information to respondents in order to prepare an adequate defense. 11. Each Party shall recognize all applicable legal privileges and confidentiality doctrines, including the attorney-client privilege between in-house counsel and corporate clients. [Drawn in part from ICN Merger] 12. Each Party also shall respect the right against self-incrimination and allow attorneys for respondents to attend interviews of their client companies and on-site inspections of those companies subject to enforcement actions. 13. Each Party shall afford the parties under review or investigation the opportunity to consult with the competition authorities at key stages of the investigation with respect to any significant legal or practical issues that may arise during the course of an investigation. [Drawn from OECD & ICN] 14. Each Party s authorities shall provide copies of transcripts of hearings, witness interviews and statements to respondents subject to competition enforcement actions in order to confront and respond to any evidence used against them. All evidence collected by each Party s authorities shall be preserved for access (e.g., review, copying, etc.) by respondents, regardless of whether those authorities relied on the evidence for its investigation and/or complaint, until after the matter is officially closed. 15. Each Party shall record and share any exculpatory evidence obtained in the course of its investigation with respondents. 16. Each Party shall ensure that a respondent in an administrative hearing convened to determine whether conduct violates its competition laws or what administrative sanctions or remedies should be ordered for violation of such laws is afforded the opportunity to present evidence in its defense and to be heard in the hearing. In particular, each Party shall ensure that the respondent has a reasonable opportunity to cross-examine any witnesses or other persons who testify in the hearing and to review and rebut the evidence and any other collected information on which the determination may be based. Each Party shall ensure that all relevant evidence from the Party s authorities, the respondent and expert witnesses are taken into account at the administrative hearing.
6 17. Each Party shall provide persons subject to the imposition of a sanction or remedy for violation of its competition laws with the opportunity to seek review of the sanction or remedy in an independent court of that Party. Such judicial review on appeal shall include an adequate evaluation of alleged procedural errors, including asserted violations of due process requirements contained in this agreement. 18. Each Party shall provide its authorities responsible for the enforcement of its national competition laws with the authority to resolve their administrative or civil enforcement actions by mutual agreement with the subject of the enforcement action. A Party may provide for such agreements to be subject to judicial approval. 19. Each Party shall publish rules of procedure for administrative hearings convened to determine whether conduct violates its competition laws or what administrative sanctions or remedies should be ordered for violation of such laws. These rules shall include procedures for introducing evidence in such proceedings, and for presenting witnesses and experts, and shall apply equally to all parties to the proceeding. 20. The Parties recognize the importance of cooperation and coordination between their respective authorities to promote effective competition law enforcement. Accordingly, the Parties shall negotiate and enter into a comity agreement that provides a framework for cooperation in relation to their enforcement policies and in the enforcement of their respective competition laws, including through mutual assistance, notification, consultation, and exchange of information. Future Parties to this agreement must also become signatories to the negotiated comity agreement. ARTICLE 16.2: DESIGNATED MONOPOLIES 1. Each Party shall ensure that any privately-owned monopoly that it designates after the date this Agreement enters into force and any government monopoly that it designates or has designated: (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges; (b) acts solely in accordance within its own commercial interests and free from undue political or governmental influence in its purchase or sale of the monopoly good or service in the relevant market,1) including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its designation 2) that are not inconsistent with subparagraph (c) or (d); (c) provides non-discriminatory treatment to covered investments, to goods of the other
7 Party, and to service suppliers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and (d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices such as cross subsidization into a nonmonopolized market in its territory that adversely affect covered investments. 2. Each Party shall ensure that any regulatory body responsible for regulating a government or designated monopoly is separate from, and not accountable to, the monopoly. 3. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly or maintaining a designated monopoly. 1 For greater certainty, purchase or sale of the monopoly good or service in the relevant market in Article 16.2 refers to the sale of the designated monopoly good or service in the case of a designated monopoly supplier and to the purchase of the designated monopoly good or service in the case of a designated monopoly buyer. 2 For greater certainty, nothing in this Chapter shall be construed to prevent a Party from amending the terms of a monopoly s designation. 3 Subparagraph (b) shall not be construed to prevent a designated monopoly from supplying the monopoly good or service in accordance with specific rates approved, or other terms or conditions established, by a regulatory authority of a Party, provided that those rates or other terms or conditions are not inconsistent with subparagraph (c) or (d). ARTICLE 16.3: STATE OWNED & PRIVILEGED ENTERPRISES 1. Each Party shall ensure that any state owned enterprise that it establishes or maintains: (a) does not, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership: (i) (ii) enter into agreements among competitors that restrain competition on price or output or allocate customers for which there is no plausible efficiency justification, or engage in exclusionary practices that substantially lessen competition in the market to the detriment of consumers. [Above: Taken & adapted from the Singapore FTA] (b) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; (c) acts solely in accordance with its own commercial interests and free from undue political or governmental influence in its purchase or sale of goods or service, including with regard to price, quality, availability, marketability, transportation, and other terms and
8 conditions of purchase or sale; (d) is subject to enforcement of a Party s laws, except where explicitly made exempt., (e) operates under the guise of the OECD GUIDELINES ON THE CORPORATE GOVERNANCE OF STATE-OWNED ENTERPRISES and; (f) accords non-discriminatory treatment in the sale of its goods or services to covered investments. 2. Each Party shall ensure that any regulatory body responsible for regulating a government or designated monopoly is separate from, and not accountable to, the monopoly. 3. Each Party shall be responsible for limiting any assistance it provides to a state-owned or state-privileged, but private enterprise where that assistance is designed to provide a competitive advantage to an enterprise which is financially stable and commercially engaged in an otherwise open and competitive market. 4. Nothing in the Chapter prevents a Party from providing assistance to a failing firm which is state or privately owned or from granting assistance for the purposes of encouraging investment and economic development where such assistance is provided openly and through a competitive process in awarding such assistance to any interested and qualified companies. 5. Each Party shall take no action or attempt in any way, directly or indirectly, to influence or direct decisions of its state-owned enterprises or state privileged enterprises including through the exercise of any rights or interests conferring effective influence over such enterprises, except in a manner consistent with this Agreement. However, each Party may exercise its voting rights in state owned enterprises in a manner that is not inconsistent with this Agreement. [Taken from Singapore FTA] 6. Each party shall make efforts to reduce, with a goal of substantially eliminating, its aggregate ownership and other interests that confer effective influence over enterprises organized under the laws of Party, taking into account, in the timing of individual divestments, the state of relevant capital markets. [Above: Taken & adapted from the Singapore FTA] 7. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state owned enterprise, ARTICLE 16.4: DIFFERENCES IN PRICING Articles 16.2 and 16.3 shall not be construed to prevent a monopoly or state enterprise from charging different prices in different markets, or within the same market, where such differences are based on normal commercial considerations and in accordance with its own commercial interests, such as taking account of supply and demand conditions. ARTICLE 16.5: TRANSPARENCY
9 1. The Parties recognize the value of transparency in their competition enforcement policies. 2. On request of a Party, each Party shall make available to the other Party public information concerning its: (a) competition law enforcement activities; (b) state owned enterprises and designated monopolies, public or private, at any level of government, provided that the request indicates the entities involved, specifies the particular goods or services and markets concerned, and includes some indicia that these entities may be engaging in practices that may hinder trade or investment between the Parties; (c) the percentage of shares and the percentage of voting rights it cumulatively owns in a state owned enterprises; [Above: Taken & adapted from the Singapore FTA] (d) a description of any special shares or special voting or other rights that the Party or its state owned enterprises hold, to the extent different from the rights attached to the general common shares of such entity; [Above: Taken & adapted from the Singapore FTA] (e) the name and government title(s) of any government official serving as an officer or member of the board of directors of any state-owned enterprise; [Above: Taken & adapted from the Singapore FTA] (f) the annual revenue or total assets, or both of any state-owned enterprise; [Above: Taken & adapted from the Singapore FTA] (g) exemptions and immunities to its competition laws, provided that the request specifies the particular goods or services and markets of concern, and includes indicia that the exemption or immunity may hinder trade or investment between the Parties; and (h) Any influence or assistance financial and non-financial that it grants under 16.3 (2) and 16.3 (4). 3. Each Party shall ensure that all final administrative decisions finding a violation of its competition laws are in writing and set out any relevant findings of fact and the reasoning and legal and economic analysis on which the decision is based. Each Party s authorities shall use experts to evaluate the economic harm of the conduct at issue to competition and consumers when economic harm is an element of the offense. 4. Each Party shall further ensure that the decisions and any orders implementing them are published or, where publication is not practicable, otherwise made available to the public in such a manner as to enable interested persons and the other Party to become acquainted with them. The version of the decisions or orders that the Party makes available to the public may omit business confidential information or other information that is protected by its law from public disclosure.
10 5. Each Party shall publish publicly all rules, policies, practices, and procedures that are in place for conducting investigations and making final administrative decisions. ARTICLE 16.6: CROSS-BORDER CONSUMER PROTECTION 1. The Parties recognize the importance of cooperation on matters related to their consumer protection laws in order to enhance the welfare of their consumers. Accordingly, the Parties shall cooperate, in appropriate cases of mutual concern, in the enforcement of their consumer protection laws. 2. The Parties shall endeavor to strengthen cooperation between the United States Federal Trade Commission, on the one hand, and the Ministry of Finance and Economy of Korea and the Korea Fair Trade Commission, on the other, in areas of mutual concern relating to their respective consumer protection laws, including by: (a) consulting on consumer protection policies and exchanging information related to the enactment and administration of their consumer protection laws; (b) strengthening cooperation in detecting and preventing fraudulent and deceptive commercial practices against consumers; (c) consulting on ways to reduce consumer protection law violations that have significant cross-border dimensions; and (d) supporting implementation of the OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders (2003). 3. Nothing in this Article shall limit the discretion of an agency referred to in paragraph 2 to decide whether to take action in response to a request by a counterpart agency of the other Party, nor shall it preclude any of those agencies from taking action with respect to any particular matter. 4. Each Party shall endeavor to identify, in areas of mutual concern and consistent with its own important interests, obstacles to effective cooperation with the other Party in the enforcement of its consumer protection laws, and shall consider modifying its domestic legal framework to reduce such obstacles. ARTICLE 16.7: CONSULTATIONS 1. To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of the other Party, enter into consultations 4 For greater certainty, ownership, or control through ownership interests, may be direct or indirect. regarding representations made by the other Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. 2. The Party to which a request for consultations has been addressed shall accord full and sympathetic consideration to the concerns raised by the other Party. 3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall
11 endeavor to provide relevant non-confidential information to the other Party. ARTICLE 16.8: DISPUTE SETTLEMENT Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 16.1, 16.6, or ARTICLE 16.9: DEFINITIONS For purposes of this Chapter: consumer protection laws means: (a) in the case of Korea, Chapters III, IV.3, IX, and X of the Framework Act on Consumer, and the Fair Labeling and Advertising Act and its implementing regulations; and (b) in the case of the United States, laws and regulations prohibiting unfair or deceptive acts or practices within the meaning of Section 5 of the Federal Trade Commission Act; a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, governmental authority; designate means, whether formally or in effect, to establish, designate, or authorize a monopoly or to expand the scope of a monopoly to cover an additional good or service; government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party;4 in accordance with its own commercial interests means consistent with normal business practices of privately-held enterprises in the relevant business or industry where such business practices aim to increase a company s profitability, reduce costs, and gain efficiencies. market means the geographical and commercial market for a good or service; monopoly means an entity, including a consortium or government agency, that in any 16-6 relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and non-discriminatory treatment means national treatment and most-favored-nation treatment, as set out in the relevant provisions of this Agreement, including the terms and conditions set out in the relevant Annexes thereto. state owned enterprises means any ownership, controlling or otherwise which the state has in the enterprise, its subsidiaries or affiliates. state privileged enterprises means an enterprise that is privately owned but still enjoys the favor of the state as it receives either financial or non-financial benefit from its relationship to the