Article 16.1: Competition Law and Authorities and Anticompetitive

Business Conduct1

1.        Each  Party  shall  adopt  or  maintain  national  competition  laws  that proscribe anticompetitive business conduct, with the objective of promoting economic efficiency and consumer welfare, and shall take appropriate action with respect to that conduct.  These laws should take into account the APEC Principles to Enhance Competition and Regulatory Reform, done at Auckland, September

13, 1999.

2.        Each Party shall endeavour to apply its national competition laws to all commercial activities in its territory.2     However, each Party may provide for certain exemptions from the application of its national competition laws provided that those exemptions are transparent and are based on public policy grounds or public interest grounds.

3.        Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws (national competition authorities). Each Party shall provide that it is the enforcement policy of that authority or authorities to act in accordance with the objectives set out in paragraph 1 and not to discriminate on the basis of nationality.

Article 16.2: Procedural Fairness in Competition Law Enforcement3

1.        Each Party shall ensure that before it imposes a sanction or remedy against a person for violating its national competition laws, it affords that person:

(a)       information about the national competition authority’s competition concerns;

(b)       a reasonable opportunity to be represented by counsel; and

 (c)       a reasonable opportunity to be heard and present evidence in its defence, except that a Party may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy.

In particular, each  Party shall afford that  person a reasonable opportunity to present evidence or testimony in its defence, including: if applicable, to offer the analysis of a properly qualified expert, to cross-examine any testifying witness; and to review and rebut the evidence introduced in the enforcement proceeding4.

2.        Each Party shall adopt or maintain written procedures pursuant to which its national competition law investigations are conducted.  If these investigations are  not  subject  to  definitive  deadlines,  each  Party’s  national  competition authorities shall endeavour to conduct their investigations within a reasonable time frame.

3.        Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings concerning alleged violations of its national competition laws and the determination of sanctions and remedies thereunder. These rules shall include procedures for introducing evidence, including expert evidence if applicable, and shall apply equally to all parties to a proceeding.

4.        Each Party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its national competition laws with the opportunity to seek review of the sanction or remedy, including review of alleged substantive or procedural errors, in a court or other independent tribunal established under that Party’s laws.

5.        Each Party shall authorise its national competition authorities to resolve alleged violations voluntarily by consent of the authority and the person subject to the enforcement action.  A Party may provide for such voluntary resolution to be subject to judicial or independent tribunal approval or a public comment period before becoming final.

6.        If  a  Party’s national  competition  authority issues  a  public  notice  that reveals the existence of a pending or ongoing investigation, that authority shall avoid implying in that notice that the person referred to in that notice has engaged in the alleged conduct or violated the Party’s national competition laws.

7.        If  a  Party’s  national  competition  authority  alleges  a  violation  of  its national competition laws, that authority shall be responsible for establishing the 

legal and factual basis for the alleged violation in an enforcement proceeding.5

8.       Each Party shall provide for the protection of business confidential information, and other information treated as confidential under its law, obtained by its  national competition authorities during the  investigative process.    If  a Party’s national competition authority uses or intends to use that information in an enforcement proceeding, the Party shall, if it is permissible under its law and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate defence to the national competition authority’s allegations.

9.        Each Party shall ensure that its national competition authorities afford a person under investigation for possible violation of the national competition laws of that Party reasonable opportunity to consult with those competition authorities with respect to significant legal, factual or procedural issues that arise during the investigation.



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