WORLD TRADE
ORGANIZATIONWT/WGTCP/W/219
6 November 2002
(02-6103)
Working Group on the Interaction
between Trade and Competition PolicyOriginal:  English
COMMUNICATION FROM THE UNITED STATES
The following is the final text of a paper re ceived from the Permanent Mission of the United
States which was circulated as an advance copy for the Working Group's meeting of 26-27 September
2002.
_______________
PROCEDURAL FAIRNESS
I. BACKGROUND ON PROCEDURAL FAIRNESS
The Doha Ministerial Declaration created a work program for the Working Group on the
Interaction Between Trade and Competition Policy which includes clarifying the core principles of
procedural fairness, transparency and non-discrimination - the topics to be addressed at the Working
Group’s September session.  Since this is the first time the Working Group will address the concept of
procedural fairness in any detail, the United States has elected to submit two papers for this session of
the Working Group.  This submission is devoted entirely to procedural fairness, while transparency
and non-discrimination, which were discussed previously by this Working Group in June 1999, areaddressed in a separate, accompanying paper entitled, "Transparency and Non-Discrimination."
The United States begins this submission with a background discussion about the procedures
that the US antitrust agencies have in place to ensure that their actions are fair and impartial.  The
paper concludes with a discussion designed to raise issues on which the Working Group might focusas it considers a possible multilateral WTO framework that would include commitments relating to
procedural fairness in antitrust matters.  The United States hopes that its submission will encourage a
productive exchange of views among the Members and will assist the Working Group in its efforts to
clarify procedural fairness concepts.
A. P
ROCEDURAL FAIRNESS AT THE US A NTITRUST AGENCIES
In our March 2001 submission entitled "Administering a Competition Law and Policy: The
Mechanics of Setting and Pursuing Policy Goals with Finite Resources," we described in detail the
case selection and review procedures of the US antitrust agencies.1  We do not intend to repeat at
length what was contained in our previous submission, but instead will summarize those aspects ofthe submission that dealt with the procedural provisi ons that the US antitrust agencies have in place to
                                                     
1 WT/WGTCP/W/164.WT/WGTCP/W/219
Page 2
ensure that their decisions are made fairly and impartially, and supplement the summary with
additional information where appropriate.2
1. Antitrust Investigations
By way of background, both US antitrust agencies possess very broad discretion in
determining whether to open an investigation on th e basis of a complaint or pursue enforcement
action.3  The concept of broad prosecutorial discretion4 to bring or not bring cases is a familiar one in
common law countries.5  In the case of the Department of Justice ("DOJ"), there is no formal
procedure for making complaints, which may take the form of telephone calls, faxes, electronic
messages, letters or presentations by individuals, firms, or their legal counsel.6  Consistent with the
protection of prosecutorial discretion, there is no requirement that the DOJ respond or act in response
to complaints.  The DOJ, following its internal procedures,7 retains discretion in determining whether
to open and pursue an investigation, taking into account the law and the evidence, as well as its policy
priorities and resource constraints.  It is important to note that the DOJ does not have the power to
issue orders to block mergers or stop anticompetitive conduct on its own.  Instead, the DOJ enforces
the antitrust laws through lawsuits brought in the federal courts.  A critical factor in the decision
whether to bring a case is, therefore, the need to persuade a federal judge (or jury in a criminal case,see below) that an offense has been committed.
8
The Federal Trade Commission ("FTC", or the "Commission"), much like the DOJ, has wide
discretion regarding whether to open an investigation and to pursue enforcement action.  The FTC
Rules of Practice and Procedure ("Commission Rules") provide that "any individual, partnership,corporation, association, or organization may request  the Commission to initiate an investigation in
respect of a matter over which the Commission has jurisdiction."
9  Complainants are encouraged to
provide a signed statement that includes a description of the alleged violation, any available
supporting documentation and the name and address of the complainant.  In addition to this formal
complaint process, and far more important numerica lly, are the many informal complaints that reach
                                                     
2 This submission focuses on the procedures utilized by the federal antitrust authorities in the United
States, but, as noted in previous submissions, e.g., WT/WGTCP/W/164, US statutes and court decisions confer
standing to enforce the US national antitrust statutes on state attorneys general and injured private parties as
well.  Most US states also have antitrust laws closely paralleling the federal antitrust laws.  The state lawsgenerally apply to violations that occur wholly in one state.
3 The US antitrust agencies may initiate investigations on  their own initiative as well as in response to a
complaint.  Investigations are triggered by the staff’s monitoring of press reports and/or can arise out of othercases, investigations, or agency projects.
4 The term "prosecutorial discretion" generally refe rs to the freedom conferred on an investigative
agency to decide which civil, criminal and administrative cases or matters are appropriate to pursue.
5 In Canada, the Attorney General of Canada (usually through the Crown counsel) exercises a broad
discretion in the public interest in deciding which cases to prosecute; decisions whether to prosecute rest solelywith the Attorney General and his or her counsel.  This has also been the view long taken in the UnitedKingdom.  In 1925, the then-Attorney General of England explained, "I understand the duty of the Attorney
General to be this.  He should absolutely decline to  receive orders from the Prime Minister, or Cabinet or
anybody else that he shall prosecute.  His first duty is to see that no one is prosecuted with all the majesty of thelaw unless the Attorney General ... is satisfied that the case for prosecution lies against him.  He should receiveorders from nobody. " J. Edwards, The Law Officers of the Crown  215 (1964).
6 For a fuller discussion of the procedures utilized by the US Department of Justice in antitrust
investigations, see the 550-page manual of the Antitrust Division.  Antitrust Division Manual (1998), available
at http://www.usdoj.gov/atr/foia/divisionmanual/three.atr.htm.
7 See generally Antitrust Division Manual at Chapter III.
8 See generally the United States’s March 2001 submission, WT/WGTCP/W/164, for a more detailed
account of the considerations that go  into a decision by the FTC and the DOJ to file a case, including the
standards for filing criminal matters.
9 Rule 2.2 (a), 16 CFR 2.2 (a).WT/WGTCP/W/219
Page 3
the agency through the mail, telephone, fax and other media.  While there is no requirement that the
Commission respond to requests to initiate an investigation, FTC Bureau of Competition staff does
acknowledge receipt of such requests, and usually engages in a brief discussion of the legal issues
involved, either in writing or, more commonly, by phone.  Telephone responses have been
increasingly used in the interest of speed, convenience, dialogue, and offer direct contact between thecomplainant and the agency.  The final decision to investigate is based in part on the seriousness of
the allegations, the Commission’s enforcement priorities, and its enforcement constraints (e.g. ,
resources).  This decision is entirely discretionary.
Once a civil antitrust investigation begins, the DOJ’s and the FTC’s investigatory procedures
leading up to the filing of a case in court (or an administrative complaint in those FTC cases that are
adjudicated within the FTC) are similar.  To ensure that the investigatory process is carried out in afair manner, at every point in the investigatory process - from opening an investigation to issuing a
second request in a merger investigation to using compulsory process to recommending enforcement
action or closing an investigation - staff must consult with management before proceeding to the next
phase.  Throughout the course of an antitrust investigation, the subjects of an investigation (and/or
their representatives) may, and usually do, meet with staff conducting the investigation.  For example,in criminal cases, the DOJ Antitrust Division Manual instructs that the staff should afford counsel for
the parties an opportunity to present their views to  the staff before a staff recommendation is made
and to senior Antitrust Division officials before a decision to file suit or seek an indictment is made.
10
The agencies frequently confer with interested third parties.  As the case reaches important decisionpoints, meetings often take place between the subj ects of an investigation and senior DOJ and FTC
officials.  In the case of the Commission, this may include meetings with the individual
Commissioners, who make the ultimate enforcemen t decision but who are outside the day-to-day
chain of command.  Throughout the entire process, both staff and management are well aware that if
an enforcement action is brought, it may ultimately have to be proved before an independent tribunal.
Both US federal agencies are bound by strict confidentiality rules.  Most criminal antitrust
matters are investigated through the grand jury process, which is conducted in secret.
11  All persons
present inside the grand jury room, except the witnesses, are prohibited by law from disclosing
matters occurring before the grand jury.12  Most mergers come to the attention of the agencies through
the pre-merger filings that are made pursuant to the Hart-Scott-Rodino Act ("HSR"), which provides
that all "information or documentary material" filed with the Division or the FTC pursuant to the HSR
Act may not be made public except "as may be relevant to any administrative or judicial action orproceeding."
13  Barring this limited exception, HSR material may not be disclosed to state or foreign
enforcement agencies or to third parties without the consent of the party producing the information.  A
significant amount of information in merger and civil non-merger antitrust investigations is obtained
                                                     
10 Antitrust Division Manual at III-113.
11 In the United States, federal prosecutors investigate crimes through the grand jury system.  The grand
jury is a body of citizens, ranging from 16 to 23 in number, who are responsible for hearing evidence againstthat targets of an investigation and returning indictments against the targets if they determine that probable
cause exists to believe that the targets have committed a crime.  The only persons allowed to attend the grand
jury hearing, in addition to the grand jurors, are the prosecutors, the witness under examination, interpreters ifnecessary, and the person who records the hearing.
12 Knowing violations of grand jury secrecy may be punished as contempt of court.  Grand jury secrecy
encourages witnesses to testify freely and honestly, minimizes the risks that prospective defendants will flee or
use corrupt means to thwart investigations, safeguards the grand jurors themselves and the proceedings from
extraneous pressures and influences, and protects persons under investigation who ultimately are not charged.The transcript of the witness testimony is generally kept secret during the grand jury phase of the investigationand is usually only revealed if the target is indicted and goes to trial and the disclosure of the testimony is usedas evidence at trial or required by applicable pre-trial discovery rules.
13 Section 7A(h) of the Clayton Act, 15 U.S.C. § 18a(h).  The agencies interpret this provision to mean
an administrative or judicial action to which the agency is a party.WT/WGTCP/W/219
Page 4
through compulsory process, which includes interrogatories, requests for documents and depositions.
This type of material may be disclosed to third parties in only very limited circumstances.14  Even
information provided to the agencies voluntarily (i.e. , outside compulsory process) receives
substantial protection from disclosure.15  Due to the strict confidentiality rules governing information
obtained pursuant to the grand jury process and information obtained under the HSR and civilinvestigatory demand ("CID") statutes, staffs do not provide interested third parties access to the
evidence gathered, nor do they disclose the fact that a firm or individual is under investigation, unless
that fact is already known publicly, in which case the agencies will confirm that they are
investigating, but generally will not disclose any additional details about the investigation.
The US federal antitrust agencies effectively balance confidentiality with the important
interest in maintaining overall transparency of antitrust process, decisions, and policies.
16  The DOJ
and FTC typically inform the subject of a potentia l enforcement action of the allegations they intend
to make, so that the subject has the opportunity to respond before a final agency decision on
enforcement action is taken.  Both agencies publish their settlements and seek public comment before
finalizing settlements.17  Decisions not to take action are not ordinarily publicly announced, although
they typically are made known to the subject of the investigation and, on a case-by-case basis,interested third parties are advised of the outcome.  Of course, antitrust trials and appeals (discussed
more fully below) occur almost entirely in public circumstances.
2. Antitrust Trials
With respect to civil antitrust matters, which include mergers and most monopolization
offenses, the DOJ must seek relief from a federal court of general jurisdiction, which will issue a
decision after a trial on the merits.  The defendant of such an action is accorded a number of
procedural protections during the course of litigation, including, among other things, the ability to call
witnesses on its behalf and the right to cross examine hostile witnesses.  In addition, prior to trial, both
the government and the defendant may obtain information from each other and from third parties thatmay be relevant to the claim or defense through interrogatories, document requests, and depositions.
The trial court’s decision is appealable by both the government and the defendant.
The DOJ can, and often does, also prosecute violations of the Sherman Act criminally.  The
vast majority of cases prosecuted criminally have involved allegations of per se violations of
Section 1, such as horizontal pri ce-fixing, bid-rigging and market or customer-allocation conspiracies.
Criminal proceedings involve additional procedural protections that are designed to satisfy the due
process requirements of the US Constitution and the extensive case law interpreting the concept of
                                                     
14 The Antitrust Civil Process Act, 15 U.S.C. § 1311-1314, governs compulsory process in DOJ
investigations.  Material obtained pursuant to the Antitrust Civil Process Act may be  disclosed without theconsent of the producing party: (1) to Congress; (2) to the FTC, which is bound by the same rules as the DOJwith respect to the use of the material; (3) to third parties "in connection with the taking of oral testimony"pursuant to the CID statute; and (4) for official use in connection with court cases, grand juries, or a Federaladministrative or regulatory proceeding in which the DOJ is involved.  The FTC’s confidentiality obligations
with respect to its information it obtains under its compulsory process procedures are similar.
15 While confidential information provided voluntarily in the course of an antitrust investigation does
not receive the broad statutory protection afforded materi al provided in response to compulsory process or in
connection with grand jury proceedings, it is the DOJ’s policy not to disclose sensitive business information
unless the disclosure is required by law or is necessary to further a legitimate law enforcement purpose.  At the
FTC, information provided voluntarily, in lieu of compulsory process, receives the same protection as
information provided pursuant to compulsory process.
16 Transparency will be discussed in detail in our accompanying paper entitled, "Transparency and
Non-discrimination."
17 See ABA Section of Antitrust Law, Antitrust Law Developments 686 and 756-763 (5th ed., 2002).
Also, plea agreements in criminal cartel matters are not subject to public comment but must be approved by a
federal court.WT/WGTCP/W/219
Page 5
due process and concepts of fundamental fairness.  US criminal antitrust cases are litigated in federal
court, and defendants have the right to call their own witnesses and cross-examine those who testify
against them.  However, defendants benefit from additional procedural rights, including a trial by
jury, access to documents that are in the US’s possession and that are material to the preparation of
the defense, discovery of statements of government  witnesses, disclosure of exculpatory information
in the possession of the United States, and the right against self-incrimination.  In criminal matters,
the government must prove its case beyond a reasonable doubt.  This is a higher standard than the
"preponderance of the evidence" standard used in civil antitrust matters.  Defendants in a criminal
cartel prosecution may appeal an adverse trial decision, but, with very rare exceptions, the
government may not.
The FTC brings some of its actions independently in courts while others are adjudicated
within the FTC in proceedings much like a court trial.  In both cases, decisions are subject to review
by a US Court of Appeals.  With respect to those matters that are adjudicated before the FTC, various
procedural rules seeking to ensure fairness are in place, including requirements that adjudicative
proceedings be conducted expeditiously, and provisions that the administrative law judge be
independent.  The respondent also has certain procedural rights, including the right to discoverdocuments from the FTC and third-parties, depose government witnesses, and call and cross-examine
witnesses on its own behalf during the proceedings.
18  Where the FTC brings actions before federal
courts of general jurisdiction, the same procedural safeguards discussed above in relation to the DOJ’s
civil antitrust cases apply.
II. ISSUES RAISED BY INCORPORATING PROCEDURAL FAIRNESS IN A
MULTILATERAL WTO FRAMEWORK
A. WHAT IS MEANT BY PROCEDURAL FAIRNESS ?
There is currently no broad international consensus on what constitutes procedural fairness in
the antitrust context, and reaching agreement on elements for inclusion in a possible multilateralframework addressing procedural fairness will be a very challenging exercise.  Notions of
fundamental fairness in the context of law enforcement disciplines such as antitrust differ greatly from
legal system to legal system and naturally will be influenced by the political and legal culture in
which an antitrust agency must operate.  Achieving a consensus on detailed and specific guidelines
that respect differences in legal systems and do not infringe on national sovereignty or violate the
independence of enforcement agencies and courts seems unlikely.  On the other hand, it may be too
easy to read individualized notions of fairness into procedural fairness guidelines that are not specific
enough.  If they are made overly abstract or general, not only will they fail to provide much in they
way of guidance, but they may also create signif icant uncertainty and become a ready invitation to
attack any Member’s system for failure to comply.
Although the Working Group has neither discussed procedural fairness in any detail nor
analyzed the connection between antitrust procedural fairness concepts and the world trading system,
previous submissions to this Working Group by the European Union ("EU") offer some insights into a
few of the elements that the Working Group might consider in a prospective WTO instrument.  In the
interest of stimulating a discussion among the Working Group members, we summarize the EU’s
work below.  We then discuss the main concepts raised by the EU and raise issues and questions forconsideration by the Working Group.  We close by addressing the concept of timeliness since many of
the procedural fairness elements discussed below are not worth a great deal unless an antitrust
authority is able to resolve its matters in a timely fashion.  We hope that such a discussion will clarify
the potential benefits, costs and issues that a multilateral framework on procedural fairness may entail.
                                                     
18 16 C.F.R. § 3, available at http://www/access.gpo.gov/nara/cfr/cfrhtml_00/Title_16/16cfrv1_00.html.WT/WGTCP/W/219
Page 6
As noted above, previous submissions by the EU may offer some ideas for the Working
Group to consider during its first discussion of procedural fairness.  In its June 2000 submission to the
Working Group, the EU argued that transparency provisions in any WTO agreement on competition
"should include the issue of ‘due process’ . . . [including] procedures through which private parties
can have access to the competition authorities, guarantees of due process in competition investigationsand enforcement, basic standards of protection of confidential information, a right of appeal against
administrative decisions and the role of the judiciary in the enforcement process."
19  The EU also
addressed procedural fairness concepts in its May 1999 submission, where (in the context of a
discussion on non-discrimination and transparency) it noted that "[t]he rights of private parties in
competition proceedings are central" and stressed the importance "both of the right to bring
complaints before competition authorities and of the right of action before courts."  The EU shared its
initial thoughts about elements that could be considered for WTO rules on competition and suggestedthat the Working Group study the following topics for inclusion as possible elements:  "[p]rocedures
through which private parties can have access to the competition authorities;"  the protection of
confidential information;  and the "role of the judiciary . . . including both direct access to the courts
and review of administrative decisions."
20  The submission also summarized the basic rights of firms
under EC competition law which consists of:  (a) notification to all the parties concerned of a"statement of objections" setting forth the objections raised by the Commission;  (b) the right to reply
to these objections in writing and orally;  (c) the right to have access to the Commission’s file with the
exception of documents of a confidential nature ;  (d) the right to protection of confidential
information;  and (e) the right to judicial review of competition decisions.
21
The work done by the EU presents a number of themes for this Working Group to consider,
including the importance of access to the antitrust authority, the notion of an antitrust authority
informing parties of its objections before taking final action, confidentiality protections, and the role
of the judiciary in enforcement, including appellate review.  We discuss each in turn.
B. ACCESS TO THE COMPETITION AUTHORITY
Obviously, for an antitrust regime to be fair, it should not arbitrarily treat the complaints of
some more favorably than those of others, but what does appropriate access to an antitrust authority
entail from a procedural fairness perspective?  Does it simply mean the right to express one’s views to
the antitrust authority?  Or, does the concept mean more than that and include the right to a formal
meeting with or response from the antitrust authority?  If so, would access require an antitrust agency
to implement formal procedures for handling comp laints or conduct hearings before taking (or
declining to take) action?  Would it further requ ire that all complaints be answered formally,
including obviously meritless claims?  And, if a formal system for handling and responding to
complaints is considered necessary, how would antitrust authorities with limited resources
(particularly new regimes or small agencies) im plement such systems without compromising more
critical priorities, such as focusing on urgent enforcement matters and competition advocacy?  Wouldrequirements for formal procedures interfere with an agency’s prosecutorial discretion - a notion that
is central to the operation of the legal systems of many jurisdictions?  If formal procedures for
                                                     
19 WT/WGTCP/W/152 at page 7.
20 Id. at 13.
21 WT/WGTCP/W/115 at pages 6-8.  See also WT/WGTCP/W/45 at p. 6-7 (suggesting that the
working group explore the "right of firms to bring comp laints," administrative proceedings, decisions, judicial
review, and access to the judiciary for private enforcement. )  Other EU papers discuss the concept of procedural
fairness but only in a general way.  For example, the EU’s June 2000 submission also addresses due processwithout expanding on the concept by stating that the transparency provisions of a multilateral agreement oncompetition "should include issues of ‘due process’ as an important contribution to the effective enforcement of
antitrust law.  WT/WGTCP/W140 at page 8.  The EU addresses due process in the context of transparency in itsJune 1999 submission as well, by stating that "[transparency] . . . also includes guarantees of "due process."
WT/WGTCP/W/130 at page 3.WT/WGTCP/W/219
Page 7
handling and responding to complaints were considered unnecessary, how would a Member that
utilized informal procedures demonstrate that its decisions to follow up on some complaints but not
others were fair?
With respect to access and other areas of procedural fairness, WTO Members will need to
consider whether all persons should be treated equally regardless of circumstances or whether more
expansive rights should be conferred on certain classes of parties.  For example, it is common for a
US antitrust authority, in the context of a significant merger review, to meet repeatedly with a
customer of the merging parties but to meet with a small competitor of the parties less frequently (or
not at all, particularly if that competitor has expressed its views in writing).  Is the antitrust authority
acting "fairly" for treating the customer differently from the small competitor?  Should the antitrust
authority be required to meet with, or accord procedural rights to, classes of third parties (such aslabor unions or shareholders in the context of a merger), that may be harmed by a transaction but not
in a traditional antitrust sense?  Must antitrust agencies affirmatively seek out third parties who might
be affected by the conduct at issue and give them notice of the investigation?
Finally, some Members - such as the United States - provide broad rights of action for private
parties to pursue antitrust claims directly regardless of what government antitrust agencies might do.
Should all Members be required to provide similar rights?  Should the antitrust agencies of Members
whose legal systems allow for private rights of action be required to grant as much access as those
that operate in regimes that do not allow for such rights?
22
Answering these and other questions regarding procedural fairness questions might well
require discussion and a better understanding of the relationship between antitrust procedures and the
world trading system, as well as further work and consensus on the proper focus of antitrust policy.
Members who view antitrust policy as having more of a consumer-welfare and efficiency focus will
put emphasis on customer evidence, whereas Members who believe that an antitrust regime should beused as a tool to promote industrial policy or protect competitors likely would favor expansive rights
for competitors.  And, Members whose antitrust legislation includes consideration of broader social
policy objectives would probably favor access for a larger class of complainants than those Members
whose antitrust statutes are more conventional.
C. K
NOWING THE BASIS FOR A COMPETITION AUTHORITY ’S OBJECTIONS BEFORE FINAL
ACTION IS TAKEN /RIGHT TO RESPOND
Informing subjects of an investigation of the basis for the antitrust authority’s objections
before it takes action promotes fairness.  This practice gives the subject an opportunity to respond and
clarify any misunderstandings, and, to the extent that such a discussion fosters a dialogue between the
antitrust authority and the parties in which the merits of a potential case are discussed, the accuracy of
the ultimate decision can only be enhanced.  The EU’s previous submissions seem to recognize thiswhen it cites to its own procedures which involve issuing a Statement of Objections prior to the
Commission’s final decision and enabling parties to respond orally and in writing.
If WTO Members decided that this practice should be included in a possible multilateral
framework on competition, they would need to de termine the form that such a practice should take
and what such an obligation would entail.  Questi ons the Members might wish to consider involve
whether the subject of an investigation is entitled to this information in writing, similar to what is
done in the EU.  Or, could Members comply by communicating their objections orally and in a more
                                                     
22 The EU made this observation in its September 2000 submission to the Working Group.
WT/WGTCP/W/152 at page 7 ("For instance, effective guarantees as regards the right to bring petitions toadministrative competition authorities are of greater impor tance in the case of countries where direct access to
the judiciary is a significant limitation.").  See also OECD, "Remedies Available to Private Parties Under
Competition Laws," COM/DAFFE/CLP/TD(2000)24/FINAL.WT/WGTCP/W/219
Page 8
informal fashion?  In addition, the Working Group might want to consider how extensive obligations
in this area ought to be.  In other words, to what extent (and when) would an antitrust authority be
required to divulge the details of its potential case to the subject of the investigation?  How would
confidential information or information from inform ants (particularly those in cartel cases) be handled
in this regard?
D. ROLE OF JUDICIARY /APPEAL RIGHTS
Previous US and EU submissions highlight the important role that the judiciary and appeal
rights play in an antitrust regime.23  There is no question that independent review of antitrust decisions
disciplines agency decisionmaking, leading to more accurate and equitable results.  If Members were
to address appeal rights, a number of additional issues will need to be addressed.  First and foremost,
Members will need to determine what type of decisions are reviewable by the judiciary.  Would adecision not to investigate or a decision to close an investigation without taking action be subject to
review?  Or, would appeals be limited to and ultimate, adverse decision on the merits?  Would the
answer to this question depend at all on whether the Member’s legal system had private rights of
action for antitrust matters?  Would compulsory process or other requests for information by the
antitrust authority be appealable?  To the extent that an antitrust authority shares jurisdiction for
competition matters with other government agencies or regulators, would the decisions of those
entities also be reviewable?
WTO Members will also need to consider issues concerning the appeals proceeding itself.  To
encourage fairness, it would seem necessary for an appeal to be heard by a tribunal that is trulyindependent of the antitrust authority.  Should there be a requirement that the judiciary be involved in
appeals?  Would systems that do not provide for open appeal proceedings be considered fair?  To
what extent should appeals be open to the public or other parties interested in the matter?  Would
systems that do not allow for the filing of amicus curiae  briefs for consideration by the appeals
tribunal be considered fair?
If WTO Members decide that appeal rights are an important element of procedural fairness,
they also will need to determine who ought to possess such rights.  This issue was discussed more
fully above in Section II.B. on access to the antitrust authority.
E. C
ONFIDENTIALITY
Providing adequate safeguards for confidential information relates to fairness, although it is
also a necessary component of any effective antitrust regime.  Antitrust cases are fact-intensive, and
an antitrust authority will not be able to inve stigate adequately without access to confidential
information from the subject of an antitrust inquiry, as well as its customers and competitors.  If the
authority acquires a reputation for divulging sensitive information, firms will not cooperate and the
effectiveness of the agency ultimately will be compromised.  Questions involving confidentiality arenot always easy and an antitrust authority must balance confidentiality concerns against a number of
other competing interests throughout the course of an investigation.  For example, an antitrust
authority frequently must reveal some of the details of the transaction - or the details of a possible
settlement - in order to elicit useful information from third parties in a merger investigation.
Additionally, as discussed above, the subjects to an investigation should be informed of the antitrustauthority’s concerns before it takes action.  Balancing the desire of subjects to know the nature of the
claims made against them against the preference of firms (e.g. , complaining customers) not to have
the firms under investigation know they have assisted the antitrust authority is a sensitive and difficult
exercise in practice.  In the United States, this issue also comes up not only during investigations but
also in antitrust trials, where the court attempts to balance the needs of the defendants to have full
                                                     
23 See, e.g., United States’s June 2000 submission, WT/WGTCP/W/142 at p. 7.WT/WGTCP/W/219
Page 9
access to all the evidence against them against the c onfidentiality of third-party materials.  This is
typically handled by a protective order (e.g. , a court order that permits disclosure of sensitive
information only to outside counsel for the part ies, keeping it nonpublic, etc.).  And, generally
speaking, an antitrust authority is constantly presented with issues that involve balancing general
transparency - the public's right to know what thei r government is doing - against a firm's right to
keep confidential business information secret.  Because many of these decisions are made by antitrust
authorities on a case-by-case basis, designing a new WTO provision that would contain appropriate
exceptions to deal with the host of confidentialit y situations faced by antitrust authorities each day
will be a challenging exercise.
The WTO Members would also need to determine what commitments Members would have
regarding confidentiality.  What if a Member had confidentiality laws and policies but did notestablish adequate penalties for those who disclosed confidential information?
24
F. TIMELINESS
An antitrust authority may have extensive procedural fairness mechanisms in place but if it
cannot resolve its investigations, cases, and appeals in a timely fashion, these protections are notworth a great deal.  Undue delay hurts parties who may be harmed by the conduct at issue and creates
uncertainty, ultimately imposing unwarranted costs on the subjects of the investigation.
In addressing the concept of timeliness, the Working Group will need to consider a number of
challenging issues.  What would be considered timely and who would make such a determination inthe WTO context?  For the significant number of antitrust enforcement regimes whose laws and
regulation do not impose deadlines for action, or that rely on the judicial system as the final arbiter of
decisions, how would timeliness be evaluated withou t inquiring into the specifics of individual cases
or infringing on the independence of the judiciary?  Would the concept of timeliness be sufficiently
flexible so as to reflect the reality that some antitrust matters are more complex and take longer toinvestigate and resolve than others?  Similarly, so me antitrust matters require expeditious review, and
a lengthy investigation may, in and of itself, force an outcome.  For example, if an antitrust authority
does not reach a decision on a merger in a timely fashion, the delay can derail an otherwise legitimate
deal.  Would a merger review system that did no t provide the opportunity for review and appeal of
adverse decisions within sufficient time for the me rging parties to consummate their transaction be
fair?
III. CONCLUSIONS ON PROCEDURAL FAIRNESS
The above discussion addresses only a limited number procedural fairness elements for the
Working Group to consider.  In many ways, the possibilities are nearly endless, and determining what
to include and what to exclude would be a difficult exercise absent a better understanding of which
antitrust procedures in particular bear a close relationship to world trade.  As the discussion in SectionI more fully detailed, the US antitrust agencies - like most mature antitrust authorities -  have in place
a variety of different policies, procedures and rules designed to enhance fair and equitable results.
However, devising detailed provisions on procedur al fairness that would not lead to interminable
arguments on the comparable merits of various legal systems would be a difficult exercise because
notions of fundamental fairness differ greatly from legal system to legal system.  What may beconsidered a sound and fair policy in one jurisdiction may not be transferable or even necessary in
                                                     
24 In the United States, antitrust employees who disclose confidential information are subject to
removal from office and may be prosecuted criminally.  18 U.S.C. §1905 (1948).  In addition, employees aresubject to a large collection of laws and regulations designed to prohibit corruption.  See,  e.g., 18 U.S.C. §§201-
209 (1948) (criminal statute prohibiting bribery of public officials and witnesses and addressing conflicts of
interest and outside employment by government officials).WT/WGTCP/W/219
Page 10
another.  On the other hand, a bare-bones framew ork on procedural fairness may not provide enough
guidance to WTO Members or the general public on what meets minimum standards, and any
Member’s system could become subject to challenge with unpredictable results.
The United States hopes that this paper’s presentation of some of issues relating to procedural
fairness will assist the Working Group in its clarification efforts, consistent with the mandate of the
Doha Declaration.
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