Identifying the relevant jurisdictions affected by the anti-competitive conduct
An ever growing number of national and supra-national competition regulators are taking an increasingly tough and joined-up stance to enforcement in circumstances where anti-competitive behaviour is suspected. The degree of communication between regulators should not be underestimated.
Even if an anti-competitive issue appears contained to one country, it may well trigger a number of investigations, or follow-on civil claims, both in that jurisdiction and globally, depending on the scope and impact of the practices concerned.
Where it is thought that certain employees within the business may have engaged in anti-competitive conduct, it is therefore important to identify as swiftly as possible all jurisdictions which may have been touched or affected by that anti-competitive behaviour.
Consider, in particular, the following:
- the nationality and places of residence of all employees and other individuals involved
- where all relevant corporations are registered and do business (if different)
- which countries the suspected cartelised products were sold into and out of? Were the customers based in other countries than those which the product was delivered into?
A co-ordinated, multi-jurisdictional response can achieve numerous cost and efficiency savings. Moreover, this will be absolutely necessary if the company is to take full advantage of available immunity or leniency programmes. The fact that immunity or leniency is unavailable in one jurisdiction does not mean that this will necessarily be the case elsewhere. Understanding your geographical risk areas will guide the company’s decision making when considering whether or not to apply for immunity or lenience from a given regulator. For further information on immunity and leniency programmes see here.
It will also be important to give adequate attention to multi-jurisdictional document control, particularly in light of the differing rules in relation to disclosure or discovery of documents and privilege around the globe.
Consider the need to retain local counsel in the affected jurisdictions, and one main external legal adviser who can act as a point of contact and co-ordination between different jurisdictions.
