Second Decade Outcomes
The Second Decade project produced significant outcomes for the network. Its recommendations led to several notable achievements and areas of growth. First, with all projects open to all members and input sought across the network, ICN’s emphasis on inclusive participation resulted in increased member engagement in projects. Further, the ICN implemented a plan to rotate the leadership of its working groups that was aimed at encouraging involvement from a broader range of members. This has greatly increased the number of agencies which have led ICN working groups and projects and hosted events over the past decade. The network also has encouraged its members to pursue increased engagement with and from NGAs.
Two significant trends with respect to ICN work product grew out of Second Decade: (1) a commitment to reevaluate and revise prior work, and (2) the expansion of multidisciplinary and emerging topics across the network’s agenda. Several flagship work products from the ICN’s initial years were revised in the second decade, such as the ICN’s first recommended practices on merger notification and review procedures and its staff-targeted Anti-Cartel Enforcement Manual on investigative fundamentals. The ICN also has broadened its work product to address important topics that span the different enforcement areas of antitrust. In 2011, the Steering Group initiated two expansive topics that helped shape ICN output throughout the decade: one on enforcement cooperation that led to comprehensive reports on the state of cooperation in 2013 and 2020, and one on procedural fairness, embodied in the ICN’s Recommended Practices for Investigative Process and the ICN Framework for Competition Agency Procedures. Both topics drew from experience across competition enforcement and policy areas, were showcased in ICN workshops and conferences, and led to significant ICN work product.
While the early days of ICN work were dominated by the identification and articulation of basic enforcement and agency practices, a new focus of work developed in the ICN’s second decade: exploring emerging and unresolved topics of importance to the competition community. Examples of this type of “ICN 2.0” line of topics have included disruptive innovation, competition advocacy in an economic downturn, online vertical restraints, big data and collusion, digital platforms, cooperation tools, and the intersection of competition and data privacy. An important innovation in work formats also blossomed over the past decade with the creation of ICN’s Training on Demand project, which produces video presentations on key ICN work topics. Anchored by work on enforcement fundamentals, the addition of emerging policy issues has helped the ICN’s agenda address the full range of issues member agencies and practitioners face.
As the ICN approaches its 20th anniversary, it has focused its attention once again on the future of the network. At the 2020 Annual Conference, the ICN recalled a tool from its past to help it look to the future, announcing its Third Decade initiative. Third Decade is a comprehensive, network-wide exercise to evaluate the rules, tools, topics, and working procedures that guide the network to ensure and enhance its effectiveness over the next decade. The project is led by the German Bundeskartellamt, the Dutch ACM, and the U.S. FTC. The project issued member and NGA surveys and is conducting discussion calls seeking network-wide input focused on participation, communication, work product and its implementation, the network’s structure, and its advocacy voice. The results of the surveys and consultations will inform a report with recommendations for the network expected in time for the ICN’s October 2021 annual conference.
Expectations for the Third Decade Project can be categorized into three groups: (1) widespread support to continue many of the ICN’s working methods, (2) several ideas and practices that the ICN might expand, and (3) a few ideas where the network might break new ground.
The Many Ways the ICN Is Working Well
Preliminary feedback from surveys to members and NGAs (the results of which will be finalized in the October 2021 report) indicates widespread satisfaction with the mission and working procedures of the ICN. Nearly all members are familiar with the scope of the ICN’s work product, reporting that they use and distribute ICN work internally. Members support the informal structure and consensus-based working process of the ICN; the variety of types of ICN work, including prioritizing recommended practices; the ICN’s engagement with other international organizations; network support for member agencies’ domestic advocacy roles; and the ICN’s role as an international advocate for competition principles. Accordingly, with near universal support for many of the key pillars of the ICN’s approach, the look and feel of the ICN and its operations should remain relatively unchanged in its third decade.
In terms of structure, the ICN will remain a non-binding, voluntary network with the mission of fostering cooperation, advocacy, and soft law convergence. Members value the informal, virtual nature of the ICN, recognizing that it enables its participants to engage more directly and frequently with one another in comparison to other international fora that rely on more formal and mediated structures. While some assert or assume that the non-binding nature of the ICN’s work is a weakness, it has fostered an open, shared pursuit and acceptance of aspirational, forward-looking best practices.
The Several Ways the ICN Might Improve Existing Operations
Participation. For a network based on consensus building and non-binding recommendations, it is essential for members to have the opportunity for experience-sharing to identify best practices and active engagement in order to provide the necessary input, and ultimately support, for recommendations and guidance. This model is most effective with robust participation, and indeed, each ICN working group, project, and event typically benefits from the participation of dozens of members and NGAs and their diverse perspectives. As current ICN Chair Mundt has explained, the ICN “should pay a renewed attention to the consultation of members and their participation in the drafting of the most important ongoing projects and in particular Recommended Practices. This is the best way to ensure that members will feel committed to putting them into practice.”
According to preliminary survey feedback, active participation varies from project to project, based on the nature of the project and interest from agencies, and there is no expectation that every member takes an active role in every project. While ICN workshops and online seminars regularly draw audiences of 100 to 200 from a large majority of member agencies, active participation in work product creation is typically less. For example, the six survey-based reports produced by the ICN in 2020 and 2021 show a range of 25 to 56 responses from agencies.
The expansion of membership from the 15 founding agencies to 140 today has enabled significant work product growth, with between 20 and 30 different workstreams through the network each year. However, this abundance has also taxed members’ ability to follow and participate in work across the network. This challenge should not be met by curtailing useful work and engagement but rather by ensuring such work is varied, participatory, open to all interested, and informed by relevant expertise and a range of representative perspectives. The ICN should maintain opportunities for all members to follow and contribute to all of its work.
The ICN has welcomed new members enthusiastically and expanded its work slate to meet the needs of the growing community, but it has not always armed its members sufficiently with the knowledge of how the ICN operates and the opportunities to contribute that are available. Institutionally, the ICN has slowly recognized this concern, appointing a Vice Chair for outreach to younger agencies, a NGA liaison, and a group dedicated to raising awareness about ICN work and its projects to members. Within the last year, the ICN has addressed this gap by establishing a “Bridging Project” that links new members to Steering Group members for updates and consultations on ongoing ICN activities. The ICN needs to continue to encourage high levels of participation in the work of the network, especially the presence and degree of participation of young agencies, including in the governance structures, working groups, and various events. Ways to maintain and expand participation that have been identified by member feedback include an emphasis on widespread input into topic selection and diverse project leadership to instill a wider sense of ownership in the work of the network, sensitivities to time zone differences for the ICN’s many discussion calls and events, and active ways to integrate new and younger members, like the Bridging Project.
The larger challenge in terms of participation in the ICN comes with NGAs. Although only competition agencies are members, the ICN welcomes the participation of all NGAs, including academics, in-house counsel, consumer groups, private practitioners, economic consultants, and representatives of international organizations. This partnership with NGAs is enshrined in the ICN’s Operational Framework, noting the intention for “effective working relationships with Non-Governmental Advisors.” The Framework opens participation in ICN working groups and events to NGAs, who contribute to the discussions during projects, in seminars, and at conferences and workshops. In no other government competition fora do non-member experts play such an integral role and participate in day-to-day activities. According to survey feedback, today’s active NGAs hail from only about one-third of the member jurisdictions, with a heavy tilt toward jurisdictions with more established competition regimes and private practitioners. As recognized in survey feedback, to accomplish its goal of reaching the whole of the global antitrust community, the ICN needs to encourage and assist its younger members in outreach and inclusion of NGAs in their jurisdictions. The ICN should affirm its encouragement for participation from a large, diverse set of NGAs from all perspectives.
Communications. As with any network, the ICN’s work relies on effective communications. Hundreds of participants collaborate within working groups to create ICN work product and need effective ways to communicate to do so. Consensus building requires an informed membership and opportunities for all to participate in and contribute to the work. Communication among network participants also has a direct impact of facilitating broader cooperation among agencies. The relationships built over ICN projects and events carry over to bilateral case cooperation and policy exchanges in interaction outside of the network.
Stronger network communication is directly linked to participation levels, and it should be a priority for the ICN’s Third Decade to increase information about ongoing work, as well as to provide opportunities for input or to serve as speakers at events. For the most part, information about ongoing work is disseminated by individual working groups, with an “insider” nature to information flow among working group participants. This decentralized process has been augmented recently with regular updates through a network-wide newsletter and more regular updates on a “news and events” page of the ICN website. This trend should continue if the ICN wants to increase participation. Over the past five years, the ICN also has made modest steps to add a Twitter account (@ IntCompNetwork) and a YouTube channel.
Given the recent challenges that agencies have faced over the past year during the pandemic, member feedback has emphasized a need and desire to strengthen the network’s online and virtual interactions to continue to facilitate sharing. Though not standard practice today, ICN events should make more use of videos and broadcasts, in various formats, from lectures, discussions, or presentation of perspectives, to supplement and preserve discussions, with the ability to expand access and viewership and turn ephemeral events into institutional knowledge.
Implementation. For a voluntary, non-binding network, promoting the use and implementation of its recommendations can be challenging. The ICN model relies on persuasion through common experiences rather than coercion. It leans on the consensus nature of its work, work that is envisioned, articulated, and approved by peers of the target audience. ICN work product carries influence not from obligation, but from its example and status as a resource derived from the application of lessons learned within the broader community.
Current ICN Chair Mundt has explained that “to ensure that the ICN and its work products matter, we need to make our high-quality products available to everyone and continue our efforts to promote their implementation.” Anecdotal evidence points to a significant impact from the ICN’s work. Approximately four out of five member agencies report using ICN work product to inspire changes to their guidelines, rules, practices, or training. Yet, this immense impact has come even without consistent and focused support within the network. A few self-assessment materials exist for ICN work, and occasional workshops and seminars promote existing work, but annual work plans and events tend to focus on new work discussion and creation. A more dedicated implementation focus to tie these efforts together is evolving within the ICN. Recently, a dedicated “Promotion and Implementation” team was created within the network to support working groups and members seeking ways to use ICN work product.
One implementation tool created in the last decade that might grow in importance is the opt-in framework. The ICN has created three such frameworks, one each on merger and cartel enforcement cooperation, and one addressing procedural fairness in competition agency procedures. These frameworks allow willing participants to endorse a specific set of principles or aspirations, permitting additional cooperation and engagement among like-minded agencies with the potential to help boost convergence. These frameworks show the potential for creativity with respect to implementation tools, and for finding ways to increase convergence on ICN principles. The idea of opt-in commitments among willing agencies could be applied to other topics and recommendations for greater impact on implementation.
Despite a largely ad hoc approach to promoting implementation of its work, the ICN has seen very positive results in terms of member agency use of its work product. This is all the more reason to pursue more active and systematic support for implementation efforts if the ICN is to live up to its aim of producing work product that matters.
A Few Ideas for the ICN to Break New Ground
New Work and Formats. One constant throughout the ICN’s years has been a changing and expanding agenda of topics tailored to familiar and emerging issues faced by member agencies. ICN experience suggests that there will be new topics and areas of work for the ICN in its Third Decade, most obviously new work addressing the digital economy and its implications for competition, the intersection of competition and privacy laws, and the role of regulation in competition policy. These are dominant topics on the minds and agendas of member agencies.
Initial survey feedback also has identified several other topics of interest that are not currently addressed in detailed ICN work product. These include the relationship between intellectual property and competition, innovation and addressing technological change, competition in an economic recovery, non-cartel horizontal agreements, compliance, and both environmental and social sustainability.
Developing existing work into new work formats has also been suggested, particularly with respect to expanding the ICN’s set of recommended practices or training video options to cover more topics. For recommended practices, the ICN has room to explore many unilateral conduct and cartel topics. Expect the ICN to attempt to increase understanding and disseminate advice on best practices by identifying new topics that are important and relevant to its members and reframing them to the international context.
In 2020, during the pandemic, the ICN demonstrated the potential dexterity of its interactions, possibly previewing new ways for members to work together. Long reliant on its virtual nature, the ICN has quickly directed its attention to sharing real-time experiences with enforcement during the unique health, logistical, and economic consequences of the pandemic. The ICN used its platform to inform member agencies about operational changes made by agencies and policy statements issued across the network of competition enforcers during the pandemic. Perhaps this experience is indicative of a new style of ICN collaboration, more reliant on real-time exchanges and consultations about how member agencies are addressing common challenges in the moment ––practical advice shared among peers that can be considered and implemented in short order.
ICN as an Advocate. The most intriguing potential change for the ICN in its third decade is the extent the organization considers and pursues a collective voice as an advocate for competition principles and the extent it shares its messages beyond the network. The first active words in the ICN’s Mission Statement are “to advocate.” Advocacy for sound competition policy is the first of three primary aims of the network, alongside driving convergence and facilitating cooperation.
There are three tiers to the ICN’s advocacy role: to members, through members, and as a network to others. The most familiar and developed of the three tiers is ICN’s advocacy to members, via its work product as well as implementation advice to specific members. Competition advocacy has been a key topic of the ICN’s agenda from the outset. The Advocacy Working Group has shared experiences on developing a “competition culture” and developed tools for competition agencies to serve as advocates for competition.
The ICN also offers formal advice to member agencies seeking support for reforms that involve issues on which the ICN had adopted recommendations or guidance. On several occasions, the Steering Group has written to agency members who have requested advice, encouraging new rules and practices that are consistent with international standards as reflected in the ICN’s recommended practices. While these several instances have proven the impact that direct advice can have, they are far outnumbered by the times that agencies and governments have pursued reforms without using the ICN as a resource or sounding board. Facing calls for reform to address the challenges of enforcement in digital markets, perhaps the coming years will be a time and opportunity for the ICN to play the role of critical friend and pursue more direct advocacy assistance to its members. The ICN can do more systematic advocacy assistance by identifying reform efforts earlier, raising awareness of ICN resources to inform reform efforts, and following through with more direct advice to interested members.
ICN work and consensus building influences the development of norms across the international competition community through its members’ activities in other fora. ICN member agencies participate in numerous international bodies that deal with economic issues and competition policy––for example, the OECD and UNCTAD, as well as many regional groupings such as the ACF in Africa and ASEAN in Southeast Asia. ICN members bring their ICN experiences and accomplishments to these other venues, acting as a common foundation and inspiration for similar, consistent work elsewhere. The ICN also has taken tangible steps as a network toward more active coordination. It has teamed with the OECD on significant work to examine international enforcement cooperation, and with the World Bank on an annual competition advocacy contest that brings member agencies’ work promoting competition policy to an audience of global policymakers.
The least developed aspect of the advocacy part of the ICN’s mission is the idea of ICN statements or advocacy beyond the network. The collective expertise of the ICN membership and its experience in advocating for procompetitive policies gives the ICN unique status as a global voice for competition. Current ICN Chair Mundt tied the ICN’s global reach to its advocacy prospects, noting that ICN’s broad membership “gives the ICN the possibility to advocate its vision on the worldwide playing field.”
While the body of ICN recommendations and guidance stand as shared views on many aspects of sound competition law enforcement and policy, the nature of the ICN’s existing work is targeted to member agencies for consideration. However, twice in ICN history, the Steering Group has released statements of a different nature that speak to the vital role of competition policy in broader economic contexts, with an intended audience beyond the network. In 2009, it released “The Case for Competition Policy in Difficult Economic Times,” and in 2020, it released a statement on “Competition During and After the COVID-19 Pandemic.” Both initiatives articulate basic, common considerations for competition law enforcement in times of crisis.
The catalyst for these messages were two once-in-a-generation (or longer) events––the “Great Recession” and a global pandemic. While these critical situations brought unique urgency to the messaging, there are certainly occasions where the ICN’s voice can add value to more normal or regular competition debates. The process of using the ICN to voice a shared perspective can be difficult because of the need to accommodate different preferences through consensus building. However, when the network is able to do so, it can be a very powerful voice embodying nearly all of the enforcement community in ways not possible in other venues. The ICN should consider using its learning in crafting and issuing the two previous statements and look for more regular opportunities to advocate for policies that promote competition in international bodies, the media, and elsewhere.
Today, there are calls to relax antitrust standards and defer to industrial policies, calls to augment enforcement with regulation, questions regarding the value of global institutions, debates about non-competition goals and national champion policies, and doubts as to whether agencies can keep up with dynamic changes in the economy and new technologies. While the ICN has helped identify and define international competition principles for its members; legislators, courts, and policymakers will continue to play a part in shaping, and perhaps redefining, competition policy and mandates for enforcement agencies. Over the next decade, perhaps the most intriguing, ambitious, and uncertain question for the ICN will involve the choice whether to strengthen its voice in broader global economic policy discussions.
The ICN is not a forum for nostalgia. Approaching its 20th anniversary, the network will use the occasion primarily to look to its future. The purpose and value of the network remains as strong today as it was 20 years ago. New challenges and opportunities await the ICN over the next decade. Its tradition of self-assessment will help prepare the network and propel it forward. Its value as a forum for the exchange of experiences among the agency community, its willingness to engage with academic and private sector NGAs, and its bold mission to foster convergence should all serve the network well.
As voiced by its membership through the Third Decade Project, the ICN is entering its next decade with a focus on the need for robust participation and implementation efforts, ideas for operational improvements to communications and working processes, and a confidence to address new and emerging global competition issues. The ICN’s first 20 years also have set the stage for the ICN to serve as a global competition advocate. The ICN’s Third Decade project and recommendations should articulate these ideas and objectives to provide a roadmap to continued network success.