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From Convergence to Stagnation? Looking Back at the Future of the ICN
31.10.2023
Alejandra Palacios P. Afiliada Senior de la Escuela de Gobierno de la Universidad del Sur de California (USC Price School). De septiembre de 2013 a septiembre de 2021 fue Presidenta de la autoridad de competencia en México (Comisión Federal de Competencia Económica, COFECE).
Last week, the 22nd Annual International Competition Network (ICN) Conference took place in Barcelona. In that context, the ICN Steering Group (SG) re-elected Andreas Mundt as the ICN President. Mundt, who is the head of the German antitrust agency, has served as Chair of the network since 2013 (i.e., for ten years). Before him, the ICN had seen seven presidents in its first 12 years of existence.
What is the ICN, its annual conference, and why is it important? The ICN is a multilateral organization exclusively for competition law enforcement issues. Its members represent national and multinational competition authorities worldwide. Its mission is to advocate for the adoption of superior standards and procedures in competition policy, and formulate proposals for procedural and substantive convergence in the administration of competition law globally[1]. It was created in October 2001, when fourteen competition agencies announced its foundation. Today, it has more than 130 members. As for its annual conference, Assimakis Komninos describes it as the United Nations Annual General Assembly for competition authorities[2].
As Komninos also points out, the ICN matters as international convergence on competition standards boosts the legitimacy of enforcement actions of competition agencies[3]. Too much divergence would give the impression of capricious and/or politized law enforcement by each agency. Without a doubt, the ICN has been very effective over the years in its mission of harmonizing substantive standards, procedures and the administration of competition agencies around the globe.
“(…) in a fast-paced world antitrust enforcement convergence might become more complex as agencies adapt their enforcement agenda to respective countries’ geopolitics and their particular digital challenges. Going forward, the ICN must be bold and creative in keeping a community together around common principles and values. In this context, governance rules, including who leads the multilateral organization, are important for the ICN’s ongoing relevance, effectiveness, and legitimacy”.
The weight the ICN carries is even more surprising when one considers it is a virtual network. The body does not employ permanent staff nor does it own facilities to perform organizational tasks. It relies entirely on its members to contribute their staff’s time to organize workshops, create documents, advocate for network products, etc. As a result of this arrangement, the larger, better-funded competition agencies are the ones that support the work and organization of the network[4]. In my experience, as a member of the ICN while head of the Mexican antitrust agency (COFECE), our international team dedicated at least 30% of its time to ICN related work. The current chair at the German antitrust agency who also heads the ICN has at least three people on his staff fully dedicated to keeping the ICN up to speed.
The foundations of the ICN, its institutional design and governing rules are written in an operational framework[5]. It consists of a couple of rules that describe on its decentralized structure with a non-formal permanent secretariat network[6]. Accordingly, the ICN is governed by a rotating Chair and a Steering Group of about 15 agencies. The ICN Chair has the important responsibility of «overseeing the necessary administrative duties of the ICN, including preparation and distribution of SG minutes, and acting as the depository for information regarding the operation and activities of the ICN”[7]. «The Steering Group members shall elect a Chair from among Steering Group representatives at the ICN Annual Conference in odd-numbered years… The Chair shall serve a renewable two-year term[8]«.
Regarding Chair selection, the ICN Steering Group Chair Selection Process details that the incumbent shall initiate a selection process, soliciting expressions of interest two months before the corresponding ICN Annual Conference[9]. SG members cast their votes via secret ballot; however, in the event of only one candidate it is done by acclamation at the Conference. There is no explicit rule limiting re-election. Over the past ten years, there has not been a formal and open expression of interest (i.e., a formal contender) to become ICN chair before the corresponding annual meeting, other than from the current sitting Chair. There are a number of possible reasons for this: (1) not many agencies can commit the necessary resources to oversee the operations and activities of the network, so they don’t raise their hand; and (2) in my experience, there wasn’t much appetite among large antitrust agencies (US, Canada, European Commission, and Germany) to contemplate and discuss alternatives.
Some members of the antitrust community have observed a stagnation in the ICN’s work, partly because of its «ossified leadership»[10]. Additionally, in a fast-paced world antitrust enforcement convergence might become more complex as agencies adapt their enforcement agenda to respective countries’ geopolitics and their particular digital challenges. Going forward, the ICN must be bold and creative in keeping a community together around common principles and values. In this context, governance rules, including who leads the multilateral organization, are important for the ICN’s ongoing relevance, effectiveness, and legitimacy.
In terms of sound principles of governance for multilateral organizations, specifically in terms of legitimate governance, scholars have identified key relevant questions. Regarding participation and ownership in an institution: do all affected stakeholders have access to decision-making? Concerning accountability: is the organization being run by the most powerful for the most powerful? Does the institution’s operation reflect all member states’ interests? Are all the relevant voices in the decision-making process of the organization, be it an NGO, a civil society or even an affected populace, taken into account? Furthermore, how should boards distribute voting power to ensure newly emerging powers have a proportionate influence alongside traditional powers? (in this case, traditional power refers to the large antitrust agencies mentioned above)[11]. A particular question for a multilateral-virtual organization like the ICN is if it can continue to exist as a purely virtual network, without a stand-alone formal secretariat, without having the large antitrust agencies at forefront of its leadership (and bearing most of the work).
Of course, I alone, don’t have the answer to any of the questions posted here. However, I do think it worth having an open and transparent conversation on the need to update the ICNs governing framework and its leadership selection process to best support the network’s missions going forward.
[1] See https://www.internationalcompetitionnetwork.org.
[2] Assimakis Komninos is a partner at White&Case, Brussels office. See his LinkedIn October 20, 2023 post.
[3] Idem.
[4] Hugh M. Hollman and William E. Kovacic. The International Competition Network: Its Past, Current and Future Role, Federal Trade Commission (April 22, 2011).
[5] ICN Operational Framework, last adopted by ICN members on February 13, 2012. Available at https://www.internationalcompetitionnetwork.org/working-groups/icn-operations/
[6] The Canadian antirust agency for many years has financed a small group of people that directly supports the work of the ICN Chair and Steering Group.
[7] Idem at 4.
[8] Id.
[9] Available at http://internationalcompetitionnetwork.org/wp-content/uploads/2018/07/ICNChairProcess.pdf
[10] D Daniel Sokol. What Happened to the ICN? Journal of European Competition Law & Practice (23 September 2023).
[11] Vinicius Lindoso and Nina Hall. Assessing the effectiveness of multilateral organizations, Blavatnik School of Government, BSG-WP-2016/013 (April 2016).
