ANDREY TSYGANOV: EVERY COOPERATION SHOULD HAVE ITS RULES AND INSTITUTIONAL FRAMEWORK
Why international cooperation is the most essential for developing economies and what has Russian antimonopoly body done to develop such cooperation - Deputy Head of FAS explained at a Conference in Skolkovo Innovation Centre
On 19 November 2019, Deputy Head of FAS Andrey Tsyganov took part in the V International Research-to-Practice Conference – “Antimonopoly Policy: Science, Practice, Education”. Speaking at the session on “International cooperation in investigating antimonopoly violations”, he emphasized the importance of international collaboration between antimonopoly bodies to counter restrictive business practices of transnational corporations.
“Tools of international cooperation are extremely important for competition authorities. Because every cooperation should have its rules and an institutional framework, mutual interests and trust. All international events organized by FAS are devoted exactly to this – elaborating institutional modalities for cooperation and trust”, started Andrey Tsyganov.
He informed that currently the most global and comprehensive international document on competition law and policy is the Set of UN Principles and Rules for the Control of Restrictive Business Practices, passed by UN General Assembly in 1980. The UN Competition Set comprises Section F – “International Measures”, which formalizes possibility of consultations between competition authorities on particular cases at UNCTAD platform. Nevertheless, the UN Competition Set does not give a particular mechanism to conduct such consultations or a possibility to apply other methods and mechanisms of collaboration that can be used regardless of the development level of competition law, the degree of maturity and experience of a particular competition authority and a set of formal agreements of cooperation with foreign competition authorities.
“The UN Competition Set was approved in 1980. Since then markets have changed considerably, more than 120 jurisdictions passed national competition acts. Violations of competition rules are becoming increasingly cross-border. The world is changing every second. Therefore, the Set needs considerable modernization, it should include new provisions formalizing modalities of result-oriented cooperation between competition authorities”, believes Andrey Tsyganov.
In view of Deputy Head of FAS, this step is crucially important for developing countries that are not members of ICN or OECD and when institualization of competition authorities is at the initial stage and practice of efficient cooperation with more experienced and mature agencies has not been acquired so far.
There are several options for strengthening international cooperation at UNCTAD: adopting international cooperation guidelines as an Appendix to the UN Competition Set and further work on extrapolating international practice and exchanging contact lists.
“An analysis of proposals showed that they do not contradict and can add to each other”, pointed out Deputy Head of FAS.
“Starting the work on improving the Set, FAS understood that we need to summarize all best practices unidentified on various platforms and integrate them in the UN Competition Set, particularly, in the interests of developing countries and their economic improvement”, continued Andrey Tsyganov.
According to the speaker, this work is instrumental for developing countries that are not members of ICN or OECD, and where institutionalization of competition authorities is at the initial stage and the practice of efficient cooperation with more experienced and mature agencies has not been achieved.
FAS proposed a draft at the 16th session of UNCTAD Intergovernmental Group of Experts on competition law and policy as the starting point, from which the global competition community can work and build up consensus.
At the end of the session, the delegates reached a conclusion to form a Discussion Group on International Cooperation in order to discuss the means for improving the UN competition system.
Alternative proposals on the international cooperation documents were submitted to UNCTAD by the antimonopoly bodies of Mexico and Japan and then the USA.
More than 20 delegations took part in the discussions, and repeatedly an idea was put forward to draft an alternative text to take into account the interests of all competition agencies, especially young and developing ones.
In October 2018, UNCTAD Discussion Group on International Cooperation ordained to from an Editorial Committee which will be responsible for drafting a consolidated text.
The Editorial Committee comprised representatives of the competition authorities from Armenia, Austria, Belarus, Ecuador, Italy, Japan, Kazakhstan, Malaysia, Mexico, Russia, South Africa and the US.
On 8 April 2019, a special meeting on competition law and policy was organized in Geneva (Switzerland) to enable comprehensive discussion of a draft document and to achieve consensus on the text involving as many interested bodies as possible.
Representatives of approximately 40 competition authorities took part in the meeting. The special meeting was pivotal for engaging representatives of developing economies in the dialogue, who were able to put forward their comments and proposals regarding the text.
The final round of consultations and making a fundamental decision to include consideration and adopting the Guiding policies and procedures under section F of the UN Competition Set in the agenda of the VIII UN Conference on the Competition Set in 2020 took place during the 18th IGE session in Geneva on 10-12 July 2019.
Representatives of the antimonopoly bodies from all UNCTAD members were present at the session. The text of the Guiding policies and procedures under section F of the UN Competition Set was approved by consensus of all delegates.
“The decision was made to put the document on the agenda of the VIII UN Conference to be approved. This wording was of principal importance for us”, explainedAndrey Tsyganov.
The final step is to adopt an Appendix to UN Competition Set at the review conference (July 2020).
Deputy Head of FAS emphasized that taking into account an advisory, non-regulatory nature of the UN Competition Set, the Guiding policies and procedures, adopted as an Appendix, will not form new legal norms and adopting them will not require ratification by the member-states.
The Guiding policies and procedures shall play an important role in improving competition law for the UN member-states. It is especially pressing for developing economies and young competition agencies. They will be able to use the procedures that concentrate the best enforcement practices from all over the world in the field of cooperation between competition authorities.
“It is essential, that the document describes possibilities of cooperation between competition agencies at all stages of investigating restrictive business practice, from formal and informal notices to such efficient cooperation modalities as exchanging confidential information through exceptions. It is important for both competition authorities and companies. To avoid situations when measures used by different jurisdictions oppose each other. It is not interesting to work in the modern world and the economy without modern mechanisms”, summed up Andrey Tsyganov.