Hong Kong Competition Exchange 2018 - Summary of Discussions
Panel 6: Working Together - Collaboration and Cooperations as a Key to Success for Young Agencies
"The Conference was a rewarding experience to us. We were given a golden opportunity to engage in an intellectual discussion between distinguished people from different countries in the field of competition law. We look forward to a more mature regime with the dedication of the professionals in the near future."
Student writers:
KWONG Ka-lee (University of Hong Kong)
Kenny YEUNG Wai-in (University of Hong Kong)
Ruby CHENG Hiu-tung (University of Hong Kong)
Moderator:
Prof Frédéric JENNY, Chairman, Organisation for Economic Co-operation and Development (OECD) Competition Committee
Panellists:
Mr Matthew BOSWELL, Interim Commissioner of Competition, Competition Bureau of Canada
Mr Andre GEVEROLA, Director of Criminal Litigation, The United States Department of Justice Antitrust Division
Ms Isolde GOGGIN, Chairperson, Competition and Consumer Protection Commission of Ireland
Mr Martyn HUCKERBY, Asia Pacific Head of Competition Law, Tiang & Co
Dr Kodrat WIBOWO, Commissioner, Commission for the Supervision of Business Competition of Indonesia
Summary of discussions:
The final panel focused on the challenges faced by young agencies and made reference to overseas examples on how to enhance collaborations between the agencies and their stakeholders, and hence the impact of the agencies’ work. Panelists concluded the discussion with suggestions for these agencies during implementation stage with reference to their own respective experiences. In Prof. Jenny’s view, in order for new agencies to carry out their mandates effectively, they should:
- build capacity of their enforcement force
- gain trust and understanding of their key stakeholders, business community, and to limit the necessity of enforcement work
- successfully advocate for an enabling environment for competition
Challenges faced by young agencies
The moderator, Prof. Jenny, raised that one of the key issues to be addressed in this panel would be the challenges faced by young competition agencies.
Mr Huckerby shared his observation of two challenges encountered by young agencies. Firstly, young agencies like the HKCC lack resources. He shared his personal experience that for the many seminars that the HKCC has organized for business community and the public he often found them to be quickly filled up. This reflects that there is still a high demand for the Commission’s educational efforts. In facing this challenge, using resources effectively becomes important for young agencies. They need to prioritise and decide on the issues that are most important and relevant to the public and business community, and allocate resources for them accordingly. Echoing Mr Huckerby, Dr. Wibowo from Indonesia also said that the limit of resources is indeed a challenge for young agencies. He shared Indonesia’s experience on how limited financial and human resources have driven KPPU to collaborate with its local and international counterparts.
In Mr Huckerby’s opinion, the second challenge for young agencies is the rise of decentralised decision-making process within the corporate world. Decentralised decision-making process means that more autonomy and power are now vested with different levels of staff. Therefore, a top-down approach to competition law compliance is no longer as effective as before. Young agencies would need to reach out to all levels and areas of a corporate organization. To address this challenge, Mr Huckerby suggested young agencies to make use of social media which would be a good tool for them to get in touch with different levels.
These challenges faced by young agencies reflected that it is of utmost importance for young agencies to collaborate with overseas partners and local stakeholders. However, it should also be noted that young agencies need to be strategic, pragmatic and careful in choosing which partners to work with.
Competition agencies to cooperate with overseas counterparts and local stakeholders
The panel then proceeded to discuss some practical measures for young agencies to facilitate competition and collaboration. Mr Geverola shared the three main ways that the US Department of Justice (DOJ) has been taking to collaborate with overseas agencies.
The first route is to work through international organisations such as the Organisation for Economic Co-operation and Development (OECD) and to fully utilise the work of the alreadyestablished International Competition Network. Secondly, Mr Geverola mentioned some US’s own initiatives, one of them being the Technical Assistance Programme. He elaborated that one of the programme’s unique features is the ability to be tailored for various jurisdictions and cater for specific domestic needs of its partners. He also talked about the Visiting International Enforcers Programme which is targeted at more established agencies and the primary goal of this staff-exchange programme is for relationship building. Finally, the USDOJ has adopted the 3 strategy of offering a full manual of programmes. It refers to a highly-customised availability of choices offered to its partners, with freedom to choose any technical assistance or training needed.
Ms Goggin shared Ireland’s experience in identifying suitable overseas agencies for collaboration and capacity building. She stressed the importance of selecting a partner who shares a similar legal environment and socio-political, institutional landscape, such as agencies that have similar regulatory function and administrative power. Mr Boswell from the Competition Bureau of Canada suggested starting to look at neighboring jurisdictions in the region as well as the economies with whom the home country has a close trading relationship. For example, Canada would naturally seek to partner with the US as well as Mexico, but also its trading partners in Asia.
As for the cooperation with other local enforcement and regulatory bodies, Ms Goggin suggested that it is possible for different counterparts to work in different function areas such as criminal enforcement, surveillance and ultimately, to look for synergies. She also mentioned the importance of maintaining good relationship with the regulatory bodies and being persistent in achieving the goals of young competition agencies.
Regulatory capture
Mr Huckerby proposed three ways to mitigate the risk of regulatory capture and failing to performing its statutory functions: firstly, to set clear policy objectives and expected outcomes at the outset; secondly, to set up an appropriate organizational structure of the agency with different departments being tasked with different roles to deliver the agency’s overall objectives with clear division of labour; and thirdly, to capture and retain expert professionals in this area at the agency’s early years.
As their closing remarks, the panellists provided their final piece of advice to young agency. Boswell reiterated that a young agency should continue to show and operationalise its commitments made at the outset to itself and its partners. Dr Wibowo suggested that during the early years, advocacy plays a key role in promoting competition among the public and also as a tool to engage other government bodies, and consistency should be in place from a top-down approach. Mr Geverola stressed the importance for young agency to ensure due process and to leverage overseas best practices, such as multilateral framework project that the US DOJ is leading. Mr Huckerby suggested that agencies should also pay attention to the issues that are of public interest. Lastly, Ms Goggin reminded young agency of the need to pay attention to the detailed steps when collaborating with overseas counterparts to ensure a successful partnership, e.g. taking into the account language and cultural difference when designing an agency exchange program.
The panel concluded that engaging different stakeholders, and with strategic planning, is one of the cornerstones for any young agency to flourish as its experiences accumulate.