Clifford Chance

The Australian Competition and Consumer Commission (ACCC) has announced a new multilateral memorandum of understanding aimed at tackling anti-competitive behaviour by multinational companies.

The ACCC media release can be found here. The text of the memorandum can be found here.

The Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (MMAC) signed by the ACCC, the US Department of Justice, US Federal Trade Commission, the UK Competition and Markets Authority, the Competition Bureau of Canada, and the New Zealand Commerce Commission, came into effect on 2 September 2020.

Although the ACCC has existing cooperation agreements with each agency, the MMAC reflects what regulators view as an enhanced need for effective and efficient cross-border collaboration in a global and digital economy featuring large multinational corporations.

What Does It Do?

The MMAC is a memorandum of understanding setting out the six agencies' commitment to a non-exhaustive list of reciprocal cooperative action. These include:

• exchanging information on the development of competition issues, policies, and laws;
• sharing experience on competition advocacy and outreach;
• providing advice or training in areas of mutual interest; and 
• collaboration on projects of mutual interest via working groups and other methods.

In addition to general cooperation and assistance, the MMAC specifically endorses:

• sharing public information, confidential agency information and investigative information;
• coordinating investigative activities; and
• facilitating voluntary witness interviews.

A Model Agreement

The MMAC also provides a model agreement framework for signatory agencies wishing to develop enhanced agreements amongst themselves. The model establishes protocols for inter-agency assistance, including request frameworks, protections for privileged and protected information, costs strategies, confidentiality requirements, and scope and limitations on assistance.

Notably, signatory agencies are expected to assist and cooperate on investigations regardless of whether they adopt the model agreement.

These measures are said to allow signatory agencies to establish new standards for information exchange, as well as to collaboratively investigate individual cases of anti-competitive conduct.

The MMAC will operate alongside the ACCC's collaborative efforts under the OECD and International Competition Network and is intended to be reviewed every five years.

Implications

The MMAC demonstrates a growing regulatory appetite for cross-jurisdictional investigation capabilities.

An increasingly interconnected global economy, with increasingly diverse digital platforms, has given rise to a large number of corporations whose operations span multiple countries.

The ACCC views anti-competitive behaviour, particularly by large multinational companies, as detrimental to national economies and has attempted to expand its access to international resources and support through the MMAC to ensure comprehensive cross-border investigations.