Canada’s Competition Bureau (the “Bureau”) recently signed a new competition enforcement agreement, the Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (“MMAC”), with competition authorities in the U.S., the U.K., Australia and New Zealand. The MMAC is intended to improve the Bureau’s ability to cooperate with its counterparts in cross-border investigations, competition policy development, competition advocacy and outreach, inter-organizational training and on special projects.
The Bureau advances international enforcement cooperation and convergence in three general ways. The first is through bilateral and multilateral relationships. The Bureau has developed an extensive network of cooperation relationships with competition agencies around the world. Many of these are based on bilateral and multilateral cooperation agreements (many in the form of a Memorandum of Understanding). In addition to the MMAC, the Bureau currently has cooperation instruments relating to Canada’s competition and consumer protection laws with 15 foreign jurisdictions. It is interesting to note that the MMAC is the first direct cooperation agreement with the U.K.’s Competition and Markets Authority.
Other legal tools, such as the U.S.-Canada Mutual Legal Assistance Treaty, have permitted the U.S. Department of Justice and the Bureau to conduct joint and parallel investigations into criminal price-fixing investigations. So called ‘second generation MOUs’, along with reciprocal information gateway provisions (such as section 29 of the Competition Act, which deals with the treatment of confidential information in the Bureau’s possession), address the exchange of confidential information between Canada and other jurisdictions, such as Hong Kong and Japan. The MMCA is a second generation MOU that will permit the reciprocal exchange of confidential information and cross-border evidence gathering between the signatories.
The Bureau also works with its counterparts abroad to promote policy convergence on broader competition issues. For example, the Bureau along with the U.S. DOJ, Antitrust Division and the Federal Trade Commission published Best Practices on Cooperation in Merger Investigations. This type of soft convergence tool promotes coordination amongst the agencies; and in this case, when reviewing mergers that impact both countries. Another example is the alignment of merger reviews processes. Canada modified its investigatory powers to include a Supplementary Information Request — similar to the American Second Request — and aligned its 30-day timing procedures.
The second way the Bureau advances international concurrence is by leadership in multi-lateral fora such as the International Competition Network (“ICN”), Organization for Economic Co-operation (“OECD”) Competition and Consumer Policy Committees and the International Consumer Protection and Enforcement Network (“ICPEN”). The Bureau is a founding member of the ICN, a network of over 130 agencies world-wide. It sits on its Steering Group and also acts as the ICN Secretariat. The Bureau is currently head of the Economist sub-group which it helped establish along with economists within the ICN Agency Effectiveness Working group. Through the strategic advancement of the Economist sub-group the Bureau seeks to promote a normative approach to economic analysis for determining anti-competitive harm, the foundation of competition law.
The Bureau participates regularly in meetings of both the OECD Competition Committee and the Committee on Consumer Policy, and it regularly makes submissions to the Committee’s best practice roundtables. The Bureau is a past Secretariat of ICPEN and has taken on the role of President of the Network from July 1, 2020 to June 30, 2021. ICPEN is comprised of consumer protection authorities from over 50 countries. Its aim is to protect consumers’ economic interests around the world, share information about cross-border commercial activities that may affect consumer welfare, and encourage global cooperation among law enforcement agencies.
The third way the Bureau promotes international competition pertains to international trade agreements. Trade liberalization and competition law share the objective of promoting efficient allocation of resources and creating strong incentives for innovation and productivity enhancements in the economy. The Bureau advocates for competition considerations in Canada’s agreements to ensure that the benefits of trade liberalization are not offset by anticompetitive business conduct and to provide opportunities for Canadian participation in world markets. In addition to providing a cooperation framework for enforcement, conflicting competition and consumer protection laws can be shaped through trade agreements as demonstrated by the recent competition chapter in the Canada United States Mexico Agreement (“CUSMA”) on trade. For example, the procedural fairness article in this trilateral agreement requires parties to enforce their respective competition laws through transparent competition laws and procedural rules, by conducting investigations within reasonable time frames, by providing a reasonable opportunity to be represented by legal counsel, and by permitting early consultations during the merger review process.
Businesses should be aware that any information provided to the Bureau during the course of their investigations and merger reviews may be shared with other agencies conducting parallel investigations abroad and likewise information provided to foreign competition authorities could be shared with the Bureau. Engaging competition counsel before providing information to the Bureau is the best way to ensure that businesses’ legal rights and privileges are protected during cross-border competition investigations.
If you have questions regarding the Bureau’s information sharing practices, you can reach to any member of Fasken’s Antitrust/Competition & Marketing group. Our group has significant experience advising clients on all aspects of Canadian competition law.
The information and guidance provided in this blog post does not constitute legal advice and should not be relied on as such. If legal advice is required, please contact a lawyer in Fasken’s Antitrust/Competition Marketing group.