Download Draft Outline - August 3 2015 Proposed ACC Seminar – Antitrust

Draft Outline - August 3 2015
Proposed ACC Seminar – Antitrust Compliance Programs
1.
Can compliance programs be effective?
1.1
Can we extrapolate from our compliance risk assessments (e.g. for anticorruption) to
the antitrust field?
1.1.1 What factors should be considered in such extrapolation?
Notes
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Higher risk lines of business: (i) whether they fall within industries/segments
with historic competition issues; (ii) certain structural characteristics of industries;
Higher risk countries: (i) countries with weaker restrictions but US law would
apply extraterritorially; (ii) countries where antitrust laws have changed or been
passed for the first time, or where enforcement priorities have changed, been
announces etc.; and (iii) countries where antitrust enforcement is focused on
foreign or foreign invested companies generally or from particular countries
(political considerations). Unfortunately there is no uniform measure such as the
Transparency Index for anti-corruption
Company specific risks: (i) we use maturity models in the compliance area
(focusing on policies, training and awareness, controls and corporate culture)
perhaps we could extrapolate for antitrust – where a company or specific business
or country units fall within that maturity model – the less mature the higher the
risk; and (ii) red flags identified in the past year(s)
This should be done annually and internal reviews on practices and controls
conducted based on the risk-based assessments.
1.2
What evidence do we have that compliance programs actually reduce the likelihood of
participation in a cartel?
1.3
What lessons can be learned from companies that had a compliance program, and still
got caught?
1.4
How does one ensure that compliance programs do not encourage corporate officials
to be even more secretive?
1.5
Can it ever be appropriate or advisable for a corporation not to have a compliance
program?
2.
Cultural attitudes:
2.1
How does one deal with long-standing ingrained cultural attitudes?
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Europe before the 1950s?
Attitudes to market intelligence in the Far East?
What is the current trend in China?
Compliance training?
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Draft Outline - August 3 2015
2.2
Is the US the only country where people really believe that cartels are "wrong"?
How do Chinese people see their SOE companies?
2.3
Inside the corporation, is the root of the problem the attitude of management (head in
the sands), or the attitude of sales staff?
2.4
Are sales performance reviews an element that drive people to engage in cartels?
3.
What are the main danger areas?
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Meetings of trade associations?
Dealing with competitors?
Dealing with customers or suppliers?
Invitations to submit bids?
Unilateral conduct such as (i) pricing decisions, (ii) preferential treatment of your
own products to others, by firms viewed as possessing significant market power.
Others?
Notes:
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Avoid focusing only on horizontal activities. There are risks for unilateral conduct
as well if a company is viewed as having monopoly power. So e.g., reducing price
for incentives, price discrimination for different customers or segments.
4.
The contents of a compliance program
4.1
How should compliance programs be structured?
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4.2
Teach-in on the legal rules?
Continual preaching of the "Do's" and "Don'ts"
Obligatory on-line training at regular intervals.
What makes up an effective compliance program?
 What are most essential elements?
 How often should compliance training be given, and required to be followed?
 Should special training be organized for newly acquired entities?
 Should the Chief Executive play an active role in compliance training? To what
extent?
 Can there ever be too much effective antitrust training?
Notes:
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The US Sentencing Guidelines and their international counterparts and the COSO
framework could be applied to antitrust compliance programs.
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Draft Outline - August 3 2015
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4.2
Experience is that compliance training grows is an effective tool that is growing in
popularity. Once a year online training is not sufficient. It should be supplemented
with in-person training customized for the audiences addressed as well as
awareness programs, corporate communications reflecting tone from the top and
the middle (both formal and informal such as tweets).
Should compliance programs have a hotline so that dubious conduct can be reported?
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Is it good for staff morale to know that their colleagues may be spying on them?
Are there any issues under the law of privacy?
Notes:
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5.
Hotlines are only a part of a broader ‘corporate culture” conversation. In a healthy
environment, compliance issues (including antitrust issues) would come in from
various possible places, including reports to supervisors, HR, the Compliance team
etc. Most codes of conduct have a non-retaliation policy for complaints made in
“good faith” even if ultimately not substantiated
Criminal law issues
5.1
How should a corporation manage the situation where the company is accused of a
cartel offence, and individual members of its staff are also under investigation?
Notes:
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6.
The individual’s interests are not necessarily the same as those of the corporation
The international element
6.1
What additional considerations enter into play in the organization of compliance on an
international scale?
6.2
Does compliance vary by jurisdiction? Or should compliance vary by jurisdiction?
Where is the fine line? Is there any effective “jurisdictional defense”?
6.3
How does a global corporation deal with global compliance?
Notes:
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Tracking Global Legal Changes: Compliance programs have tools that (1) track
proposed and enacted legal changes; (2) have a process whereby those changes are
reviewed and those needing to know about the changes for purposes of changing
business practices, or policies and procedures are notified of the changes and
required actions and (ii) there is a process for implementing those changes and
monitoring compliance with those changes. This is important even for a national
system (tracking national and local laws) and is even more essential in a global
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Draft Outline - August 3 2015
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environment where a company may be subject to multiple national competition
law regimes.
Operating in Protectionist/Highly Political Legal Environments: There are two
aspects to this: (i) operating in market where national laws prefer local businesses
to foreign businesses and the interaction with trade laws; and (ii) selective
competition law enforcement where foreign companies are, or are perceived to be,
at a higher risk for enforcement actions.
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