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An International Due Process Standard for Competition Adjudication? A Critical Approach
Published online by Cambridge University Press: 17 June 2020
Abstract
With the global proliferation of antitrust law enforcement, multinational businesses, scholars, and practitioners have clamoured for stronger due process protection in competition adjudication. Often, the argument assumes the existence of a due process standard applicable internationally to all competition jurisdictions. The standard comprises certain features typical of adversarial adjudication, including a neutral decision-maker, a live in-person hearing before such decision-maker, and the right to present and cross-examine evidence and witnesses. This paper challenges this alleged due process standard on two different levels by comparing the competition adjudication procedures of the United States Federal Trade Commission, the European Commission, and the Korea Fair Trade Commission. First, the paper shows that such a standard, which advances certain features of Anglo-American adversarial adjudication, is at odds with the local due process laws of the European Union and South Korea. Second, the paper shows that implementing such adversarial features would pose significant practical problems in jurisdictions where existing administrative procedures are largely inquisitorial or ‘continental.’ While the supporters of the due process argument identify a number of procedural problems that should be addressed, framing these problems as a due process issue would only be counterproductive.
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- Copyright © National University of Singapore, 2020
Footnotes
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Assistant Professor, Department of International Economics and Law, Hankuk University of Foreign Studies, Republic of Korea. I wish to thank the Asian Law Institute (ASLI) for the opportunity to present this paper at the 15th ASLI Conference in Seoul on 10-11 May 2018, and Professor Yong Lim, Professor Tadashi Shiraishi, and Professor Michael Dowdle for their helpful comments on an earlier draft. This research was funded by the Hankuk University of Foreign Studies Research Grant.
References
1. See eg International Chamber of Commerce, ‘Recommended Framework for International Best Practices in Competition Law Enforcement Proceedings’ (ICC, 8 Mar 2010) <https://cdn.iccwbo.org/content/uploads/sites/3/2017/06/ICC-International-Due-process-08-03-10.pdf> accessed 30 Apr 2020; Ginsburg, Douglas H & Owings, Taylor M, ‘Due Process in Competition Proceedings’ (2015) 11 Competition Law International 39Google Scholar, 39: ‘The design of competition proceedings varies by jurisdiction, but each jurisdiction should aim to ensure due process’ <https://www.ibanet.org/Document/Default.aspx?DocumentUid=C45C4020-65E8-48B8-8336-7E67ADC3480B> accessed 30 Apr 2020.
2. See International Chamber of Commerce (n 1).
3. ibid 5 (emphasis added).
4. ibid.
5. ibid.
6. ibid 6.
7. ibid 7.
8. ibid.
9. Ginsburg & Owings (n 1). The authors also include ‘a decision rendered without inordinate delay’ and ‘review by an independent tribunal’ as being required by due process (p 39). They further argue that ‘although these five due process protections apply throughout the legal system, they are too often unavailable in competition proceedings’ (ibid).
10. See eg Abbott B Lipsky, Jr & Randolph Tritell, ‘Best Practices for Antitrust Procedure: The Section of Antitrust Law Offers Its Model’ (Antitrust Source, Dec 2015) 6 <www.americanbar.org/content/dam/aba/publishing/antitrust_source/dec15_lipsky_tritell_12_11f.authcheckdam.pdf> accessed 30 Apr 2020.
11. Not every due process framework advances the same adversarial features. For instance, the International Competition Network's ‘Framework on Competition Agency Procedures’ – an initiative spearheaded by the US Department of Justice to promote ‘fundamental due process in antitrust enforcement’ – does not explicitly advocate adversarial features. It nonetheless states that competition agencies should provide investigated companies with the ‘opportunity to defend’, including the ‘opportunity to be heard and to present, respond to, and challenge evidence’, and requires agencies to provide ‘reasonable and timely access to the information related to matter in the [agency]'s possession that is necessary to prepare an adequate defense’. See US Department of Justice, ‘New Multilateral Framework on Procedures Approved by the International Competition Network’ (Press Release, 5 Apr 2019) <https://www.justice.gov/opa/pr/new-multilateral-framework-procedures-approved-international-competition-network> accessed 30 Apr 2020.
12. See eg Rubin, Edward L, ‘Due Process and the Administrative State’ (1984) 72 California Law Review 1044, 1048–1049CrossRefGoogle Scholar, highlighting that the Supreme Court's due process decisions in administrative cases ‘in essence … held that the agency's decision-making must meet the procedural standards of a civil trial’; Friendly, Henry J, ‘Some Kind of Hearing’ (1975) 123 University of Pennsylvania Law Review 1267CrossRefGoogle Scholar, arguing that a ‘due process explosion’ has led the Supreme Court of the United States to extend the hearing requirement to various areas of government action. Friendly further argues that such a hearing shall, at a minimum, consist of the following essentially adversarial characteristics: (i) an unbiased tribunal; (ii) notice of the proposed action and its grounds; (iii) the opportunity to present reasons why the proposed action should not be taken; (iv) the right to present evidence/witnesses; (v) the right to know opposing evidence; (vi) the right to cross-examine; (vii) a decision based only on evidence, (viii) the right to counsel; (ix) the right to a record of evidence presented; (x) the right to the written record (p 1279–1292).
13. Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123, 162 (1951).
14. ibid.
15. ibid.
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19. See Kessler (n 18) (citing Engelmann, Arthur, A History of Continental Civil Procedure (Millar, Robert Wyness ed, Little Brown & Co 1927)Google Scholar which described the history of civil procedure in English and continental systems).
20. ibid. See also Wolfe, Jefferey S & Proszek, Lisa B, ‘Interaction Dynamics in Federal Administrative Decision Making: The Role of the Inquisitorial Judge and the Adversarial Lawyer’ (1997) 33 Tulsa Law Journal 293, 300, 303Google Scholar (citing Danet, Brenda & Bogoch, Bryna, ‘Fixed Fight or Free-For-All? An Empirical Study of Combativeness in the Adversary System of Justice’ (1980) 7 British Journal of Law and Society 36, 38CrossRefGoogle Scholar).
21. Kessler (n 18) 1184.
22. See Merryman, John Henry, The Civil Law Tradition (1st ed, Stanford University Press 1969) 137Google Scholar.
23. See eg Lee, Kwoncheol, ‘Criminal Law and Procedure’, in Korea Legislation Research Institute (ed), Introduction to Korean Law (Springer 2013) 174Google Scholar. Even in these jurisdictions, however, adversarial elements exist, especially in criminal proceedings.
24. Some may argue that agency adjudication is, by definition, fundamentally inquisitorial. An agency decision is inquisitorial in that it is often the monolithic agency – composed of state officials and civil servants – that acts like the disinterested judge by initiating the case, finding facts, and deciding the outcome. However, within a fundamentally inquisitorial paradigm, the internal proceedings could arguably be characterized as either inquisitorial or adversarial in a narrow sense.
25. Asimow, Michael, ‘Five Models of Administrative Adjudication’ (2015) 63 American Journal of Comparative Law 3, 6CrossRefGoogle Scholar (providing a methodology for classifying administrative adjudication systems around the world based on a number of factors, one of which is whether the decision-making process is ‘adversarial’ or ‘inquisitorial’).
26. ibid.
27. ibid.
28. ibid.
29. See n 12 above.
30. 5 USC §§ 554–57 (2018). These trial-type procedural requirements do not apply to all adjudication actions by administrative agencies. They apply to so-called ‘formal adjudication’. All FTC competition cases fall under the scope of ‘formal adjudication’ and require a trial-type hearing.
31. Under the APA, the requirements for formal adjudication are, among others, the following: (a) the agency must provide notice to parties of the details of the hearing, as well as the factual and legal grounds asserted (usually through a written complaint) (§ 554(b)); (b) the agency must give all interested parties an opportunity (i) to submit and consider facts, arguments, proposals of adjustment, and (ii) to have a public hearing in accordance with the procedures specified in §§ 556–557; (c) parties are entitled to counsel; (d) the presiding officer must conduct the proceeding in an ‘impartial’ manner (§ 556(b)(3)); (e) limitations on ex parte communications; (f) with regard to evidence: (i) unless otherwise provided by statute, the burden of proof lies with the proponent of the order (§ 556(d)), (ii) parties are usually entitled to submit oral testimony and documentary evidence (§ 556(d)), and (iii) cross-examination is allowed (§ 556(d)); (g) the official record of proceedings is the exclusive basis for decision (§ 556(e)); (h) the procedures for decision require that a sanction may not be imposed, or a rule or order issued, except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with reliable, probative, and substantial evidence (§ 556(d)); and (i) the availability of judicial review (§ 702) 5 USC §§ 554, 556-57, 702 (2018).
32. See 5 USC § 3105 (2018). The Office of Personnel Management makes the hiring decisions.
33. See 5 USC § 7521 (2018).
34. See 5 USC § 3105, 5327 (2018).
35. See Federal Trade Commission, ‘Office of Administrative Law Judges’ (FTC) <https://www.ftc.gov/about-ftc/bureaus-offices/office-administrative-law-judges> accessed 30 Apr 2020.
36. See Part IV.A.
37. More recent procedural reforms have provided, among others, greater access to key submissions of complainants or third parties as well as an expanded role for the Hearing Officer. See European Commission, ‘Commission reforms antitrust procedures and expands role of Hearing Officer’ (Press release, 17 Oct 2011) <https://ec.europa.eu/commission/presscorner/detail/en/IP_11_1201> accessed 30 Apr 2020.
38. European Commission, ‘Proceedings for the application of Articles 101 and 102 TFEU: Key actors and checks and balances’ (Factsheet, European Commission 2011) <http://ec.europa.eu/competition/antitrust/key_actors_en.pdf> accessed 30 Apr 2020.
39. Decision of the President of the European Commission 2011/695/EU of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings [2011] OJ L 275/29 <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:275:0029:0037:EN:PDF> accessed 30 Apr 2020.
40. ibid L 275/31.
41. Wouter PJ Wils, ‘The Oral Hearing in Competition Proceedings before the European Commission’ (3 May 2012), 29–30 <https://ssrn.com/abstract=2050453> accessed 30 Apr 2020.
42. ibid.
43. ibid.
44. According to the Commission, ‘the oral hearing allows the [business] to further exercise their right to be heard by developing their arguments orally before the Commission, which should be represented by the Directorate-General for Competition … It should provide an additional opportunity to ensure that all relevant facts … are clarified as much as possible’: ibid.
45. See generally n 38 above.
46. Case C-389/10 P KME Germany AG, KME France SAS and KME Italy SpA v European Commission [2011] ECR I-13125, para 133.
47. Korea Fair Trade Commission, ‘How We Handle Cases’ (Korea Fair Trade Commission) <http://www.ftc.go.kr/eng/contents.do?key=495> accessed 30 Apr 2020.
48. Korea Fair Trade Commission, ‘About KFTC – Organization’ <http://www.ftc.go.kr/eng/contents.do?key=496> accessed 30 Apr 2020.
49. Under South Korea's Monopoly Regulation and Fair Trade Law, art 37, the remaining commissioners are appointed upon recommendation by the Chairman.
50. See Part II.B.
51. See eg Forrester, Ian S, ‘Due Process in EC Competition Cases: A Distinguished Institution with Flawed Procedures’ (2009) 34 European Law Review 817Google Scholar; Wils, Wouter PJ, ‘The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis’ (2004) 27 World Competition 201Google Scholar. The Economist also has advanced similar arguments, publishing an opinion piece that makes the same arguments that Forrester made. See Prosecutor, Judge and Jury’ (The Economist, 18 Feb 2010) <https://www.economist.com/node/15545914> accessed 30 Apr 2020. For other types of arguments, see eg Part V above for arguments on procedural fairness that focus on whether the General Court exercises sufficient jurisdiction when reviewing the European Commission's competition decisions.
52. ibid.
53. European Convention on Human Rights, art 6(1) provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…. [and] the following minimum rights: (a) to be informed … of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance …; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him … ’.
54. See Forrester (n 51) 822–823.
55. ibid.
56. The exact phrase used in French in the Judgment of Dubus SA v France that Forrester relies on is ‘coloration penale’. In this case, after assessing the potential penalties that may be imposed by the French Banking Commission, the European Court of Human Rights held that the procedure would be considered as having enough ‘coloration penale’ to trigger the application of art 6. In so holding, the Court relied heavily on the severity of the sanctions that could potentially be applied by the French Banking Commission. See Dubus SA v France App no 5242/04 (ECtHR, 11 Jun 2009), para 37 <https://hudoc.echr.coe.int/fre#{%22fulltext%22:[%22dubus%22],%22sort%22:[%22kpdate%20Ascending%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-92990%22]}> accessed 30 Apr 2020.
57. See eg Forrester (n 51) 822–823. Additionally, Forrester is critical of the current process under which final determinations of guilt and sanctions are made by a college of commissioners. Forrester argues that these political appointees are not neutral decision-makers due to their susceptibility to political influence.
58. ibid.
59. ibid 836, citing Wils (n 51) 215.
60. ibid 836.
61. ibid.
62. ibid 837.
63. ibid.
64. ibid.
65. ibid 837, citing Wils (n 51) 217.
66. See generally, European Commission, ‘Communication from the Commission to the European Parliament and the Council’ (COM(2014) 453, European Commission 2014) <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52014DC0453> accessed 30 Apr 2020.
67. Case C-501/11 P Schindler Holding and Others v Commission [2013] ECR I-0, para 35. The Court referred to Menarini Diagnostics v Italy App no 43509/08 (ECtHR, 27 Sep 2011), in which the Court interpreted art 6 to mean that an administrative proceeding may impose a ‘penalty’ as long as this administrative penalty is subject to review by a judicial body that has full jurisdiction.
68. In Schindler Holding, the Court discussed art 6 of the ECHR as well as art 47 of the Charter of Fundamental Rights – a new treaty that is applicable more directly to the European Union structure. Art 47 of the Charter is often interpreted as providing the equivalent protections provided under art 6 of the ECHR.
69. ibid.
70. See eg Case T-406/10 Emesa-Trefilería and Industrias Galycas v Commission, T-406/10 Judgment (15 Jul 2015), holding that the Commission's competition proceedings do not violate art 6 of the ECHR and art 47 of the Charter of Fundamental Rights.
71. ibid para 123.
72. Qualcomm, ‘Qualcomm Responds to Announcement by Korea Fair Trade Commission’ (Press Release, 27 Dec 2016) <https://www.qualcomm.com/news/releases/2016/12/27/qualcomm-responds-announcement-korea-fair-trade-commission> accessed 30 Apr 2020.
73. ibid. Under the current rules, a business may already request the KFTC to allow viewing or copying of materials related to its investigation, and the KFTC shall accept such a request if it determines that sharing such materials would be in the public interest or if the person who submitted the materials has agreed to such disclosure. See Monopoly Regulation and Fair Trade Law, art 52, para 2.
74. KORUS FTA, art 16.1 6 (Office of the United States Trade Representative) <https://ustr.gov/sites/default/files/uploads/agreements/fta/korus/asset_upload_file193_12715.pdf> accessed 30 Apr 2020.
75. Constitutional Court of Korea, Case No 2001 HeonGa 25, decided 24 Jul 2003. In this case, the complainant – comprising companies in the SK group who faced administrative fines by the KFTC for providing ‘undue support’ to other companies in the same group – claimed, among others, that the then KFTC process for determining the level of fines did not meet the constitutional standards of proportionality, the rule against double jeopardy, and the principle of separation of powers. While this had not been specifically raised by the complainant, the justices also applied and analyzed art 12's ‘due process’ standards.
76. While the plain text of art 12 only refers to specific procedural requirements necessary under a criminal procedure, the Constitutional Court has interpreted the provisions to create a general right to ‘due process’ that applies to all proceedings by the state, including administrative proceedings. See Constitutional Court of Korea, Case No 92 Heonga 8, decided 24 Dec 1992 (holding that ‘the application of principle of due process [jukbupjulcha] is not limited to the criminal procedure as defined under the constitutional provision but also applies to legislative and administrative processes – as processes of the state – regardless of whether they concern restrictions of basic rights or not’). Art 12 actually does mention ‘due process’ in two different contexts: para (1) states that ‘No person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act and through lawful procedures’, and para (3) states that ‘Warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search.’
77. See n 75.
78. See eg Jung, Youngchul, ‘Haengjungbupeu Ilbanwonchikeurosuheu Jeokbupjulcha [Due Process as a General Principle of Administrative Law]’ (2013) 42 Journal of Public Law Research 580, 605–606Google Scholar; Park, Haerim, ‘Soosadangyeeu Chukbupjulchawonreeehdaehan Gochal [The Study on Due Process of Law Investigation Procedures – Focusing on the De Facto Administrative Investigation]’ (2013) 20 Chosun Law Journal 2Google Scholar; Choi, Cheong Hak, ‘Kongjeonggeoraewewonhoieuchosachulchajungbibangan – Chukbupjulchakangwhawakangjechosakwoneudoip [Reforms for KFTC's investigation process – strengthening of due process and introduction of the right of mandatory investigation]’ (2017) 65 Minjubuphak [Democratic Law] 111Google Scholar; Lee, Jungmin, ‘Kongjungkuhraewewonhoesagunchurijulchaeuhapreewha [Rationalization of the Korea Fair Trade Commission Investigation and Enforcement Procedure]’ (2016) 40 HUFS Law Review 255Google Scholar.
79. See Park (n 78) 586.
80. Korea Fair Trade Commission, ‘2018 Statistical Yearbook’ <http://www.ftc.go.kr/www/cop/bbs/selectBoardList.do?key=190&bbsId=BBSMSTR_000000002317&bbsTyCode=BBST01#> accessed 30 Apr 2020.
81. ibid.
82. ibid.
83. See eg Korea Fair Trade Commission, ‘2017 Self Performance Review Results’ (Korea Fair Trade Commission) <http://www.ftc.go.kr/www/cop/bbs/selectBoardList.do?key=270&bbsId=BBSMSTR_000000002431&bbsTyCode=BBST01> accessed 30 Apr 2020.
84. See generally Korean National Assembly, ‘Report of 2017 Annual Parliamentary Inspection’ (Korean National Assembly) <http://policy.assembly.go.kr/policy/inspect/inspect02.do?mode=view&articleNo=653036&article.offset=0&articleLimit=10> accessed 30 Apr 2020.
85. ibid.
86. Ellee Park, ‘Award of 2017 Annual KFTC-er Granted to Case-handlers of Qualcomm's KRW 1 trillion fines and corrective order’ E-Today (2 Jan 2018) <http://www.etoday.co.kr/news/section/newsview.php?idxno=1580129> accessed 30 Apr 2020.
87. See n 75.
88. In fact, as Park recognizes, there are Korean scholars who support the position that art 12's due process principle should not be available in administrative proceedings. See Park (n 78) 585. See also Gil, JunKyu, ‘Jeokjeongjulcha Urihangjeongbeopaedoyoohyohanga [Due Process of Law – Applicable in Korean Context?] (2011) 34 Hanyang Law Review 11, 30Google Scholar (arguing that applying the US-style due process doctrine in Korea is inappropriate).
89. See n 75.
90. ibid.
91. Among others, the Court does not address when, if ever, art 12 overrides the legislature's views on due process. The Court also does not explain in detail how the KFTC's current procedures satisfy the requirements of art 12, aside from concluding that they are satisfied.
92. Constitutional Court of Korea, Case No 2014 HeonBa 60, decided 28 Apr 2016.
93. ibid.
94. See eg Young-Hee Lee, ‘A Study on the Organization and Procedures of Fair Trade Commission in Administrative Law’ (Master's Dissertation, Seoul National University Law School 2017) 22–23 <http://s-space.snu.ac.kr/handle/10371/128776> accessed 30 Apr 2020. Note that the Administrative Procedure Act has been interpreted as being inapplicable to the KFTC given that there is a separate organic statute creating the KFTC. Lee argues that the KFTC's hearing, which allows each side to present its arguments and provides for a separate decision-maker, makes the KFTC process more adversarial compared to the requirements under the Act, which do not require such a process.
95. Internationally, there are also awards given by the global trade press to competition agencies for their enforcement actions. After a voting process, competition agencies are praised and named as winners of ‘Enforcement Awards’ based on a particular enforcement action. These award events do not give out awards to agencies for correctly dismissing a complaint or a case. Simply stated, there is evidence that the incentives that these competition agencies face are such that they are becoming ‘zealous prosecutors’ à l'américaine. See eg Global Competition Review, ‘GCR Awards 2016 winners – in photos’ (GCR, 12 Apr 2016) <https://globalcompetitionreview.com/benchmarking/gcr-awards-2016/1064380/gcr-awards-2016-winners-in-photos> accessed 30 Apr 2020. The KFTC was selected as an award recipient in the 2016 GCR awards.
96. See eg the discussion at n 74 above.
97. See Thibaut, John, Walker, Laurens & Lind, E Allan, ‘Adversary Presentation and Bias in Legal Decisionmaking’ (1972) 86 Harvard Law Review 386CrossRefGoogle Scholar; Lind, Allan, Thibaut, John & Walker, Laurens, ‘A Cross-Cultural Comparison of the Effect of Adversary and Inquisitorial Processes on Bias in Legal Decision Making’ (1976) 62 Virginia Law Review 271CrossRefGoogle Scholar; Block, Michael K et al. , ‘An Experimental Comparison Of Adversarial versus Inquisitorial Procedural Regimes’ (2000) 2 American Law and Economics Review 170CrossRefGoogle Scholar.
98. See Lind, Thibaut & Walker (n 97) 282.
99. See generally Block et al (n 97).
100. See Lind, Thibaut & Walker (n 97) 282.
101. See Block et al (n 97) 189.
102. See eg ibid 177–179.
103. See eg Kessler (n 18).
104. Landsman, Stephan, ‘A Brief Survey of the Development of the Adversary System’ (1983) 44 Ohio State Law Journal 713, 714–715Google Scholar.
105. See eg Brants, Chrisje, ‘Wrongful Convictions and Inquisitorial Process: The Case of the Netherlands’ (2012) 80 University of Cincinnati Law Review 1069, 1075Google Scholar (noting that the assumptions of the inquisitorial tradition imply that the ‘state is best entrusted with truth-finding’); Jolowicz, JA, ‘Adversarial and Inquisitorial Models of Civil Procedure’ (2003) 52 International and Comparative Law Quarterly 281CrossRefGoogle Scholar.
106. See Jolowicz (n 105) 288.
107. See Kagan, Robert, Adversarial Legalism: The American Way of Law (Harvard University Press 2001) 106–108Google Scholar; Gross, Samuel R, ‘The American Advantage: The Value of Inefficient Litigation’ (1987) 85 Michigan Law Review 734, 738CrossRefGoogle Scholar.
108. See Kagan (n 107) 108–109; Gross (n 107) 735–736.
109. ibid.
110. Jackson, John, ‘Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial-Inquisitorial Dichotomy’ (2009) 7 Journal of International Criminal Justice 17, 20CrossRefGoogle Scholar (citing Pizzi, William, ‘Overcoming Logistical and Structural Barriers to Fair Trials at International Tribunals’ (2006) 4 International Commentary on Evidence, Issue 1, Article No 4Google Scholar).
111. See generally Sklansky, David Alan, ‘Anti-Inquisitorialism’ (2009) 122 Harvard Law Review 1634Google Scholar; Kessler (n 18) 1258 (describing ‘[America's] reflexive commitment to an adversarial norm of due process’).
112. See Sklansky (n 111) 1636.
113. Robert A Kagan, ‘American and European Ways of Law: Six Entrenched Differences’ (Paper prepared for the First European Socio-Legal Conference, 2 Feb 2006) <https://escholarship.org/uc/item/3kt912b3> accessed 30 Apr 2020.
114. See Vogler, Richard, ‘Due Process’, in Rosenfeld, Michel & Sajó, András (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 937–938Google Scholar. Vogler notices that the global dominance of totalitarian and colonial forms of government for much of the twentieth century has left the contemporary world with a significant ‘adversarial deficit’, and that discussions of due process in various parts of the world today often refer to restoring adversarialism or so-called ‘adversarial due process’ in the legal system. Vogler further testifies to a so-called ‘due process renaissance’, particularly in jurisdictions where there has traditionally been little adversarialism.
115. Goldbach, Toby S, Brake, Benjamin & Katzenstein, Peter J, ‘The Movement of U.S. Criminal and Administrative Law: Processes of Transplanting and Translating’ (2013) 20 Indiana Journal of Global Legal Studies 141CrossRefGoogle Scholar, 150.
116. See Fed R Evid 502(b); Fed R Civ P 26(b)(5)(B).
117. See eg FTC Rules of Practice 74 Fed Reg, 20205, 20206 (1 May 2009) <https://www.ftc.gov/sites/default/files/documents/federal_register_notices/rules-practice-16-cfr-parts-3-and-4/090501rulesofpractice.pdf> accessed 30 Apr 2020 (in which the FTC revised its Rules of Practice, Rule 3.31(g) to adopt the same rules on inadvertent production as the Federal Rules of Evidence, Rule 502(b)).
118. See Federal Trade Commission, ‘Operating Manual’ <https://www.ftc.gov/sites/default/files/attachments/ftc-administrative-staff-manuals/ch10administrativelitigation.pdf> accessed 2 Feb 2020 (‘Since many adjudicative rules are derived from the Federal Rules of Civil Procedure, the latter may be consulted for guidance and interpretation of Commission rules where no other authorities exist’: p 3). The rules of evidence governing FTC proceedings do not officially adopt the Federal Rules of Evidence and, unlike in federal courts, hearsay evidence can be admitted as long as it is reliable: FTC Rules of Practice, 16 CFR § 3.43 (2011). The FTC's Operating Manual nonetheless states that the Federal Rules of Evidence ‘can be extremely useful in persuading an ALJ in ruling on admissibility of evidence’ (p 3).
119. Kim, Hyun Seok, ‘Why Do We Pursue “Oral Proceedings” in Our Legal System?’ (2007) 7 Journal of Korean Law 51, 55–56Google Scholar (‘the court has put more emphasis on written briefs than on oral arguments and has regarded written brief as a more appropriate method to overcome time constraint against caseloads [and] in this court environment, the custom of written proceeding … has taken roots in our court system.’)
120. ibid.
121. See generally Kim, Heekyoon, ‘The Role of the Public Prosecutor in Korea: Is He Half-Judge?’ (2007) 6 Journal of Korean Law 163Google Scholar.
122. See Nam, Soojin, ‘Back to Fundamentals: A Closer Look at a Seoul High Court's Unsuccessful Attempt to Introduce Attorney-Client Privilege in Korea’ (2016) 16 Journal of Korean Law 233, 244–245Google Scholar.
123. Lee (n 23) 174.
124. ibid.
125. See Brants (n 105) 1075.
126. See KME Germany (n 46).
127. See Marek Martyniszyn, ‘Due Process in EU Competition Proceedings’ (27 Jul 2019), 12 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3426510> accessed 30 Apr 2020.
128. Wils, Wouter PJ, ‘The Compatibility with Fundamental Rights of the EU Antitrust System in which the European Commission Acts Both as Investigator and as First-Instance Decision Maker’ (2014) 37 World Competition 5Google Scholar.