CANADA'S COMPETITION BUREAU GANGS UP INTERNATIONALLY FOR MORE CLOUT By Gavin Murphy (Article)

 

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Gavin Murphy

 

Canada’s Competition Bureau enters into Multilateral Mutual Assistance and Cooperation (MMAC) Framework for Competition Authorities (2 September 2020)

Introduction

The 21st century has brought about new challenges for competition agencies. Globalisation, falling trade barriers, deregulation and digitalisation are just some of the difficult issues agencies must now consider to ensure and protect free and open competition. To this end, Canada’s Competition Bureau (“Bureau”), which assists the Commissioner of Competition in the administration and enforcement of the Competition Act (“Act”), entered into a competition enforcement framework with five other agencies on 2 September 2020. The Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (MMAC) will enhance the Bureau’s ability to cooperate with competition agencies in Australia, New Zealand, the United Kingdom and the Justice Department and Federal Trade Commission in the United States.

According to a Bureau press release:

The MMAC will enable its signatories to cooperate more effectively on investigations, share their experiences and work on joint projects, including inter-organizational training initiatives. The MMAC also includes a template that agencies can use to establish bilateral or multilateral cooperation instruments focused on investigative assistance, like sharing confidential information and cross-border evidence gathering.

Building and maintaining strong partnerships improves the Bureau's ability to deliver results for Canadians. By investing in its relationships with competition agencies and other law enforcement partners, the Bureau can strengthen its ability to protect Canada's competitive marketplace, address cross-border anti-competitive activity, and promote convergence on competition policies internationally.

The MMAC

The MMAC is short and to the point, offering high level objectives but without any legally binding basis. It consists of only eight sections and an Annexure A model agreement.  At its heart is s. 3 which provides for cooperation and assistance amongst the agencies through the exchange of information on the development of competition law and policies; the exchange of experience on competition advocacy and outreach; the development of agency expertise by providing advice and guidance in areas of mutual interest (including through the exchange of officials and experience-sharing events); the sharing of best practices through the exchange of information on matters of mutual interest, in particular enforcement methods and priorities; and the collaboration on projects of mutual interest such as the establishment of working groups to consider specific issues. As well, the signatories are expected to provide assistance and cooperation on investigations by sharing public information and agency confidential information; coordinating investigative activities; facilitating voluntary witness interviews; providing copies of publicly available records; and other assistance as requested.

As regards agency confidential information, s. 3.3 of the MMAC states:

Where Agency Confidential Information is provided, the Participant receiving said information will protect the confidentiality of the information and, unless otherwise jointly decided, consistent with applicable law, will return or destroy any records containing said information promptly at the request of the Participant that provided the Agency Confidential Information.

Section 4 of the MMAC makes reference to the attached model agreement as discussed below. It was developed to assist any agency that wishes to pursue or enhance further cooperation agreements or arrangements between or among signatories (bilaterally or multilaterally) to help achieve the maximum level of assistance while respecting the laws of their jurisdiction. Section 8 of the MMAC adds that it is the intention of the parties to conduct a review every five years once the MMAC takes effect, or as otherwise agreed by consent of the parties.

Model agreement

The model agreement recognises “that the matters they [competition agencies] investigate and review increasingly require engagement with counterpart competition authorities in other jurisdictions on issues that benefit from being considered in a broader context”. Since each jurisdiction has some form of information sharing legislation that permits the disclosure of confidential information in specific circumstances and they are similarly-focused competition agency regimes, the parties will provide investigative assistance to each other on a reciprocal basis where possible to facilitate the administration and enforcement of their competition laws. This assistance could include a variety of things like the disclosure of investigative information and obtaining information such as the taking of testimony and obtaining documents at the request of another agency. Furthermore, assistance could include locating or identifying persons, the execution of search warrants and the disclosure of any such information obtained. 

Conclusion

The MMAC’s signatories all have legal systems based on English common law. They are among the world’s largest economies with sophisticated competition laws so harmonisation and consistency in the application of the MMAC is highly likely. Procedural safeguards common to all jurisdictions, in particular the application of solicitor-client privilege/legal professional privilege/attorney-client privilege and protection against self-incrimination, are recognised in the model agreement. Canada, in particular, is a major trading nation that has made a conscious effort to enhance and strengthen competition policies and laws through a variety of international mechanisms. It has inter-governmental cooperation agreements regarding the application of competition laws with the United States, Mexico, Japan and the European Union. The Bureau is party to cooperation instruments with 16 jurisdictions: Australia, Brazil, Chile, Colombia, the European Union, Hong Kong, India, Japan, Mexico, New Zealand, the People’s Republic of China, Peru, the Republic of Korea, Singapore, Taiwan and the United States. Canada is also a signatory to a number of mutual legal assistance treaties that provide a process to request mutual assistance on criminal investigations and enforcement, including criminal investigations and enforcement relating to competition law offences. Canada is a founding member of the International Competition Network and plays a key role at councils of the Organisation for Economic Cooperation and Development on competition matters. The MMAC is intended to complement, not replace, the work of these two bodies as explained in s. 1.2. 

The world is a global marketplace and convergence on competition laws help underpin the free flow of goods and services. The MMAC is positive proof of the desire by these agencies to work toward greater international cooperation on matters of mutual interest with the model agreement providing a framework to achieve this goal.

Canada was the first country in the western world to adopt a modern competition law and this competition heritage is rooted in the goal, both domestically and internationally, to ensure that Canadian business and consumers prosper in a competitive and innovative marketplace. The MMAC, and in particular the model agreement, are the latest examples of Canada’s willingness to continue along this path in an increasingly complex digital and global economy.