We Need Better Understanding of International Antitrust Practice in Order to Protect Ourselves
We Need Better Understanding of International Antitrust Practice in Order to Protect Ourselves
  • Kim Dae-yong
  • 승인 2010.03.17 09:43
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Hwawoo and Gibson Dunn hosted a seminar on int

On March 11, two law firms Yoon & Yang, or (Hwawoo under Korean name) and Gibson, Dunn & Crutcher (Gibson Dunn) jointly hosted a seminar on "International Antitrust/Competition Seminar."  The seminar was held at Korea Chamber of Commerce & Industry for an entire day.  "Since 1997, 90 percent of the fines from Department of Justice in the U.S. were related to international cartels," remarked Son Kyung Sik, the chairman of Korea Chamber of Commerce & Industry, at the opening ceremony.  He continued by saying "China is subsequently starting to monitor antitrust practices ... so with this seminar we hope that we can acknowledge the importance of the prevention of antitrust practices and freely debate the roles and responsibilities of companies in Korea as well as worldwide."

The seminar consisted of three major topics.  First, it discussed the "International Cartel Enforcement," in which various lawyers from both law firms explained and debated about precedents on "recent developments for cartel enforcement in Korea and overseas."  Also the first program, discussed about the "increased antitrust enforcement against cartels worldwide," "aggressive investigative techniques, international cooperation, and international pursuit of foreign antitrust offenders," "fraud and process crimes," "extraterritorial jurisdiction," and "civil litigation in relation to cartel in the U.S. and other jurisdictions."  Jae Young Kim, Esq. from Yoon & Yang stated during this presentation "Korean companies, which actively engage in exports and international transactions, need to be aware of the possibility of sanctions by foreign competition authorities based on extraterritorial jurisdiction."  With that being said, a partner from Gibson Dunn, Rachel Brass, supported the importance of international cooperation because of the "increasing multi-jurisdictional coordination in investigations and prosecutions."  She ended her statement with a quote from Deputy Assistant Attorney General Scott Hammond.  Here's an excerpt:

"The international cartels we are fighting understand the importance of the sharing of critical information among the participants.  If we are to be successful in the fight against cartels, then we must beat cartels at their own game.  We must share leads and information.  We must coordinate our investigative strategies.  We must ensure the element of surprise so that we can simultaneously seize evidence in multiple jurisdictions before it can be concealed or destroyed.  We must gain access to subject, evidence and witnesses that are located outside our borders.  International borders cannot serve as barriers to our ability to investigate..."

The second topic focused on "abuse of dominance enforcement."  The leading presenter explained the anticompetitive behaviors, especially on the recent fines of KRW 11 billion on Korean Air's volume incentive in attempts to prevent travel agents from providing services of the other low budgeted companies.  "The reason for Korean Air receiving a bigger fine than Asiana was because of Korean Air's extra activities.  However, both airlines abused their market dominance in order to hamper the entry of other small airlines," stated Joon Bom Kim, Director for Market Structure Improvement Division, and Market Structure Policy Bureau in the Korean Fair Trade Commission (KFTC).  The two lawyers from Gibson Dunn, jointly articulated on "dramatic developments in abuse of dominance enforcement" and "record fines and increased enforcement," and ended the presentation with questions [1]:

  • Will the trend of increased enforcement continue for the long term
  • How will the new "effect-based" approach articulated in the EC Guidance Paper be carried out in practice
  • Will the courts in the U.S. support the administration's enforcement agenda
  • What is the likelihood that increased "convergence" will lead to greater clarity for multinational businesses operating in the EC and U.S.

After a brief break, the seminar continued with the third topic called "Compliance Programs and Training, The new Priority for the Global Economy."  Gary Spratling, a partner of Gibson Dunn and a former Deputy Assistant Attorney General of the U.S. Department of Justice, administered "the value of a compliance program/prevention and detection" by confessing that "the firm with a successful compliance program minimizes the risk that it will have to face the burden, disruption, and costs associated with competition law investigations and litigation."  Therefore, he notified, "failure to implement a competition law compliance program is a very high-risk strategy," and "in certain jurisdictions and situations, making a corporate decision not to have a compliance program can raise issues of liability."  Paul Rhee responded by discussing "the value of a compliance program" from a Korean perspective.  "[KFTC needs to] show employees that have or may have engaged in a violation, the option of voluntarily filing for leniency and the enormous benefits (avoiding an administrative fine and criminal sanction). If already in the middle of a KFTC investigation for one area of the company's business, employees who may have engaged in another violation will receive enormous benefits from "Amnesty Plus" by voluntarily reporting it to the KFTC," stated Mr. Rhee.  With Rachel Brass ending the show by postulating "key points to a successful compliance program," the seminar successfully completed, providing much needed, vital information to the attorneys and all companies in Korea and worldwide.

[1] From the PPT "Dramatic Developments in Abuse of Dominance Enforcement"

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