A. Adversarial Versus Inquisitorial Systems in General

In general, the typical features of an adversarial system, as compared to an inquisitorial system, can be described in the following manner. Under an adversarial system, the parties – represented by counsel – are the ones in control of the legal proceedings. The parties are responsible for initiating the litigation, through which they determine the scope and content of the proceedings. The parties gather the evidence and present it in open court through direct examination and cross-examination. Direct examination involves rehearsed questioning by lawyers of their own witnesses, while cross-examination involves unrehearsed questioning of the opponent's witnesses to test their credibility. The judge serves as the neutral umpire. Finally, under an adversarial system, parties have the primary responsibility in determining the sequence of the litigation, taking discrete steps to move the process forward.Footnote ¹⁹

On the other hand, under a typical inquisitorial system, it is the disinterested court – the decision-maker – which is in control of the proceedings. The court initiates litigation and determines its scope and content. It is also the court which undertakes significant responsibility for gathering evidence through judicial interrogation of the witnesses. Presentation of evidence is not staged by parties’ lawyers in an open court. Rather, evidence is taken outside of the courtroom by a judge or a court-appointed commissioner, whose summary is then submitted to the court in writing. Even when evidence is taken during a hearing, it is only after interrogation from the bench that the parties’ lawyers are permitted to bring out aspects that have been omitted, or to add emphasis to certain points. The court is also primarily responsible for determining the sequence of proceedings and moving the case forward.Footnote ²⁰

While no system is likely to be a fully adversarial or inquisitorial system, many regard the current criminal and civil procedures in the United States as predominantly adversarial.Footnote ²¹ On the other hand, despite the variations among European states, relatively strong inquisitorial traditions can generally be found in continental Europe, dating back to the inquisitorial legal systems of medieval Europe.Footnote ²² Similarly, predominantly inquisitorial traditions exist in Korea, whose procedural laws are largely based on these European traditions.Footnote ²³

B. Adversarial Versus Inquisitorial Models in Administrative Adjudication

Adversarial and inquisitorial models have also been used to compare different administrative agency procedures across jurisdictions.Footnote ²⁴ Michael Asimow defines an ‘adversarial’ administrative adjudication process as a process controlled by lawyers – as opposed to an investigator from an agency – before a ‘relatively passive and independent adjudicator’, even if the adjudicator is structurally a part of the agency itself. Footnote ²⁵ In addition, adversarial administrative adjudication provides a trial-like hearing that is similar to a US-style criminal trial.Footnote ²⁶ On the other hand, under an inquisitorial administrative adjudication process, it is the agency's investigator instead of the lawyers who controls the investigation, assembles a ‘dossier’, and comes to an initial conclusion about guilt or innocence.Footnote ²⁷ While there may be written or oral opportunities for private parties to present arguments before the investigators, these processes are controlled by the officials of the agency themselves.Footnote ²⁸

The requirements advanced by those who claim the existence of an international due process standard for competition proceedings comprise the typical features of the adversarial model, namely: (i) a neutral and disinterested arbiter; (ii) an oral, in-person hearing; (iii) the presentation of evidence and the availability of opportunities to confront adverse evidence and witnesses; and (iv) rules applied equally to the business and the agency. Such features envision a process in which the competition agency and the business being investigated present their arguments before a neutral arbiter. This is, essentially, an adversarial trial in the form of an agency hearing, and the argument is reminiscent of the procedural due process arguments made in the US administrative law setting, the essence of which is to bring the procedural requirements of a US civil trial to an administrative hearing.Footnote ²⁹

A. The US FTC

Certain parts of the US FTC's administrative adjudication greatly resemble a lawyer-dominated adversarial trial typical in the US, and would thus be the closest to satisfying the alleged international due process standard. The Administrative Procedure Act (APA) – one of the FTC's governing statutes – requires administrative agencies to hold a trial-like hearing before a hearing officer whenever there is ‘formal adjudication’, a category which includes all FTC competition cases.Footnote ³⁰ The APA also introduced numerous rules which govern these types of hearings, a significant part of which are rules ensuring the independence of the decision-making functions from the prosecutorial functions.Footnote ³¹ Notably, the decision on the merits of the case – the guilt or innocence of the investigated business – is to be made after a hearing presided over by an impartial hearing officer who is part of the agency, but structurally separate from those engaged in investigation and prosecution. The hiring and firing practices applicable to these hearing officers are regulated to ensure their independence. The hearing officer – called the Administrative Law Judge (ALJ) – is to be hired by another federal agency which is entirely separate from the FTC.Footnote ³² Additionally, ALJs cannot be removed except for good cause,Footnote ³³ are not subject to performance evaluations, and are assigned no other tasks than to decide on cases.Footnote ³⁴

Pursuant to such rules, the FTC's ALJ ‘holds a full adversarial evidentiary hearing on the record’ after initial investigation by the FTC staff.Footnote ³⁵ The ALJ's access to case materials is limited exclusively to official arguments and evidence presented through the hearing, as any ex parte or off-the-record communication – including communication within the agency – is strictly forbidden. The decision, therefore, has to be based only on the arguments and evidence in the official record of the hearing proceeding, as would typically be the case in a trial in a US federal or state court. The ALJs also preside over pre-hearing conferences, and either the investigated business or the FTC case team may bring discovery, evidentiary, and procedural disputes to the ALJ for a decision.

In essence, the ALJ – as befits its name – plays the role of the judge in a typical adversarial trial in a US court. During all stages involving the ALJ, the two parties are referred to as ‘Complaint Counsel’ and ‘Respondent’. Even the FTC staff are officially referred to as counsel. Such terminology clearly reflects the FTC's fundamentally adversarial process. Furthermore, the rules of procedure governing the hearing are not much different from the rules governing US federal civil trials, and are designed to guarantee a level playing field for the parties.Footnote ³⁶ After the hearing, either the investigated business or the FTC may appeal the ALJ's decision to the five-member Commission. On appeal, the Commission issues its own final decision and may overrule the ALJ's decision. The Commission's decision may be further appealed to a US Court of Appeals.

B. European Commission

The European Commission still follows a predominantly inquisitorial adjudication process, despite certain recent procedural reforms which arguably introduced greater adversarial features to the process.Footnote ³⁷ In the EU, it is the Directorate General of Competition (DG Comp) – the division of the European Commission in charge of competition matters – that initiates the case, collects evidence, and evaluates the evidence, and also ultimately makes the initial liability decision.Footnote ³⁸

The following provides a brief summary of the key aspects of the adjudication procedure to help illustrate the differences between the EU and the United States. If, after an initial investigation, the DG Comp finds that the business is liable under EU competition laws, the European Commission will issue a written Statement of Objections outlining the DG Comp's arguments and evidence, to which the investigated business typically responds in writing with its defences. While the DG Comp and the investigated business tend to meet in person during the investigation process, it is most often to provide information to the European Commission or to answer their questions. The agency and the investigated business do not get an opportunity to canvass the substantive arguments before a neutral arbiter in a trial-like, adversarial setting.

Admittedly, the European Commission may hold an in-person oral ‘hearing’ during this process at the request of the investigated business. The Commission's hearing, however, greatly differs from the US FTC's hearing. The objectives of the Commission's hearing are two-fold. First, the Commission's hearing purports to safeguard ‘the effective exercise of procedural rights’Footnote ³⁹ of businesses. The Hearing Officer – who presides over the hearing – has the authority to decide on claims concerning procedural issues such as privilege, confidentiality, and deadlines. Second, the hearing allows the investigated business to ‘exercise their right to be heard by developing [substantive] arguments orally before the Commission’ and to ‘ensure that all relevant facts … are clarified as much as possible’.Footnote ⁴⁰ The hearing is in essence ‘a succession of presentations, interspersed with question and answer sessions’.Footnote ⁴¹ Typically, first, the DG Comp staff would summarize their arguments from the Statement of Objections, followed by a presentation from the investigated business, complainants, and interested third parties, if any.Footnote ⁴² However, the Hearing Officer has no authority to decide on the substantive issues of the case, including liability. Hence, when an investigated business presents its substantive arguments during the hearing, the target audience is not the Hearing Officer but the DG Comp.Footnote ⁴³ The hearing – insofar as it concerns substantive issues – is in essence a structured and formal meeting with the DG Comp, which is fundamentally different from the trial-like adversarial hearing before the ALJ at the FTC.Footnote ⁴⁴ After this hearing, if the DG Comp finds that the business is liable, it will issue a Prohibition Decision or a Commitment Decision, which is then submitted to the college of twenty-eight European Commissioners for a final decision.Footnote ⁴⁵ The decision by the European Commission may be appealed to the General Court of the European Union. The General Court has the authority to review both law and facts, including ‘the power to assess the evidence, to annul the contested decision and to alter the amount of a fine’.Footnote ⁴⁶

C. Korea Fair Trade Commission

The KFTC's process is largely similar to the European Commission's process discussed above. The KFTC case team in charge – like the DG Comp – initiates the case, collects evidence, and makes an initial liability finding. Once the case team concludes that a business has acted in violation of Korean competition laws after an initial investigation, the KFTC will issue a written Examiner's Report outlining the case team's arguments and evidence, to which the business typically responds with a written Response.Footnote ⁴⁷

Once an Examiner's Report is issued and a Response is submitted, the KFTC is required to hold a hearing before the KFTC's committee of commissioners, who are authorized to make the final decision on behalf of the agency. The hearing, however, would fail to meet the claimed international due process standard, given that the decision-maker – the committee of commissioners – is not a fully disinterested, neutral arbiter. Two of the nine members of the committee are the KFTC's Chairman and Vice-Chairman, who also oversee and direct the operation of the investigating body of the KFTC and often have influence on the initiation or the outcome of an investigation. Footnote ⁴⁸ The same Chairman also has the de facto authority to appoint the rest of the commissioners.Footnote ⁴⁹

Additionally, the oral hearing, in nearly all cases, is a one-time event that does not last more than a morning or an afternoon, often at the end of a years-long investigation directed and controlled by the case team. The commissioner-in-charge often reaches a tentative decision on the merits of the case well before the oral hearing based on the written ‘dossier’ compiled by the case team, and most often, this decision is adopted by the entire committee without much discussion. There is typically no opportunity for the business to cross-examine adverse witnesses. The hearing arguably functions more like an internal control mechanism than an adversarial trial. After the hearing, the committee makes a final decision on liability, which may be appealed to the Seoul High Court. The standard of review on appeal is de novo. On appeal, additional facts as well as evidence may be introduced.

D. Scoreboard for the Three Jurisdictions

Apart from the US FTC's adjudication procedure before the ALJ, the European Commission and the KFTC's procedures would fall far short of the alleged international due process standard. The adjudication process of the European Commission and the KFTC fall squarely under Asimow's inquisitorial model of administrative adjudicationFootnote ⁵⁰ and are the furthest from meeting the alleged international due process standard. Several important points may be noted. First, in the EU and in South Korea, there is no disinterested, neutral arbiter akin to an ALJ who decides on the merits; instead, it is the members of the agency who investigate and decide on liability. Second, their oral hearings are fundamentally different from that of an adversarial trial, and the purposes of those hearings are limited. In the EU, the Hearing Officer does not have the authority to rule on substantive issues, while in Korea, the Commission often reaffirms the decision already made based on the written dossier. Third, there is no cross-examination, and fourth, the procedural and evidentiary rules do not apply equally to the parties at the hearing in the manner of an adversarial trial. On the other hand, the alleged international due process standard greatly overlaps with the requirements of formal adjudication under the APA of the United States.

A. Due Process Arguments before the European Commission

Different arguments have been raised in the past about improving the competition adjudication procedures of the European Commission, including the arguments consistent with the alleged international due process standard.Footnote ⁵¹

For instance, some have argued that the existing European Commission procedures fail to meet the due process standard provided under Article 6 of the European Convention on Human Rights (ECHR).Footnote ⁵² Article 6 guarantees a number of important procedural requirements for criminal proceedings, including the right to an independent and impartial tribunal, the right to a public hearing, the right to cross-examine, the right to counsel, and the right to detailed disclosure of the basis for the criminal charge, among others.Footnote ⁵³ Ian Forrester argues that Article 6 applies to the European Commission's competition adjudication proceedings, because the fines imposed by the Commission should be characterized as ‘criminal’.Footnote ⁵⁴ He argues that the Commission's fines – given their severity and objective – have a punitive and deterrent character, and thus the Commission proceedings should observe the procedural rights guaranteed under Article 6.Footnote ⁵⁵ To make this argument, Forrester relies on the Dubus SA v France case, where the European Court of Human Rights held that Article 6 may be applied to procedures that may potentially result in a criminal or ‘criminal-like’ fine or penalty.Footnote ⁵⁶

In particular, critics have noted that the existing process does not provide for a hearing before a neutral decision-maker.Footnote ⁵⁷ According to Forrester, the European Commission is not a neutral decision-maker.Footnote ⁵⁸ He argues that there is a structural bias that flows from entrusting to the same people the functions of both investigators and adjudicators.Footnote ⁵⁹ In particular, Forrester points to the existence of: (i) confirmation bias that ‘arises from the natural tendency for a case investigator to favour evidence that supports his belief that a competition infringement has been committed’;Footnote ⁶⁰ and (ii) hindsight bias that results from one's ‘natural desire to justify one's past efforts … where Commission officials sometimes want to push through what they perceive to be “their” case’.Footnote ⁶¹ Thirdly, Forrester asserts a policy bias problem, where the Commission staff are subject to ‘the desire … to show a high level of enforcement activity.’Footnote ⁶² He points to the ‘importance attached to the fines … exemplified by statistics published by DG competition on its website’,Footnote ⁶³ and the speeches of commissioners in which the imposition of fines and the high level of these fines are highlighted.Footnote ⁶⁴ The worry is that ‘dubious cases might be pursued or fines might be inflated in order to keep up the statistics.’Footnote ⁶⁵ In other words, the European Commission has arguably become increasingly incentivized to maximize prosecution, given that it tends to measure its achievement by the level of enforcement activity. In fact, such ‘policy bias’ may also be observed in the way the European Commission characterizes its ‘achievement’ before the political bodies of the European Union that hold them in check – the European Parliament and the European Council. In its ‘Communication from the Commission to the European Parliament and European Council’, the Commission showcases its ‘Achievements’ during ‘Ten Years of Antitrust Enforcement’ by way of statistics based on the number of cases investigated and the number of cases that resulted in Prohibition or Commitment Decisions, among others, instead of statistics that emphasize a ‘correct’ or ‘just’ result.Footnote ⁶⁶

Forrester's arguments, however, have been subsequently rejected by the Court of Justice of the European Union (CJEU). In Schindler Holding and Others v. Commission, the CJEU held that:

The CJEU thus held that the procedural rights enumerated in Article 6Footnote ⁶⁸ – including the right to an impartial tribunal, the right to a public hearing, and the right to cross-examination – need not manifest themselves during the Commission proceedings, as long as there is a ‘full jurisdiction’ review by a judicial tribunal that satisfies these requirements. The Court also found that the scope of judicial review provided under the current system satisfies such a ‘full jurisdiction’ requirement.Footnote ⁶⁹ Even after the Schindler Holding case, others have tried again to introduce similar procedural features in a subsequent case.Footnote ⁷⁰ The CJEU again found that the procedures of the European Commission were well within the legal bounds prescribed by these treaties.Footnote ⁷¹

B. Due Process Arguments before the KFTC

There has been a similar push for the introduction of adversarial features to the KFTC's existing competition proceedings. For instance, an American company publicly complained that its ‘basic due process rights … were denied’ by the KFTCFootnote ⁷² and stated that it should have been given an opportunity to cross-examine witnesses at the KFTC's hearing, as well as the ‘right to have complete access to evidence’.Footnote ⁷³ The legal basis asserted by the company was the Free Trade Agreement between the United States and the Republic of Korea (KORUS FTA). While the company did not specify a particular provision, the KORUS FTA requires the United States and South Korea to ‘publish rules of procedure for administrative hearings convened to determine whether conduct violates its competition laws [including] procedures for introducing evidence in such proceedings, which shall apply equally to all parties to the proceeding’.Footnote ⁷⁴ This clause requires a hearing and the publication of hearing rules, but nowhere does it say – and no court has as yet interpreted it to say – that cross-examination or complete access to files are required under this provision of the KORUS FTA.

Others, likewise, have similarly called for greater adversarial features in the KFTC's competition and investigation process. In 2003, three justices of the Constitutional Court of Korea (Constitutional Court) issued a dissenting opinion arguing that Article 12 of the Constitution of the Republic of Korea 1948 (Korean Constitution) requires the KFTC to conduct ‘at least a tribunal-like procedure, including separation between the investigative organization and the decision-making organization, independence and expertise of the decision-maker, and sufficient investigation of evidence and defense’.Footnote ⁷⁵ Much like Article 6 of the ECHR, Article 12 of the Korean Constitution provides certain procedural safeguards for criminal defendants, including the right to counsel, the right to silence, and the right to be informed of their Miranda rights. Article 12's language is, on its face, limited to ‘criminal’ proceedings, but the Constitutional Court has extended the scope of the provision to create a general right to due process (jeokbupjulcha) which applies to all types of proceedings, including administrative proceedings.Footnote ⁷⁶ The specific procedures required under Article 12 should be ‘proportional to the significance of the basic right that is being limited’,Footnote ⁷⁷ and the three justices held that because the fines and measures imposed by the KFTC are punitive in nature, a tribunal-like process is required on the grounds of due process. These arguments are strikingly similar to the parallel argument made with regard to Article 6 of the ECHR in the European context.

There are also Korean legal scholars who agree with this dissent.Footnote ⁷⁸ Haerim Park, for instance, describes the structure of the Korean competition investigation as ‘asymmetric’ between the investigator (KFTC) and the investigated. Park argues that Article 12's general requirement of ‘due process’ requires KFTC proceedings to provide further procedural guarantees for the investigated business, and to rectify the said asymmetry between the business and the KFTC. In making that argument, Park compares the KFTC proceeding to a criminal proceeding which, in Korea, exhibits greater adversarial features than a typical administrative process. In particular, she highlights the practice whereby the materials from the KFTC's administrative investigation and adjudication are often used in a subsequent criminal investigation by the Prosecutor's Office as an important reason why the procedural safeguards provided to criminal defendants should likewise be provided to investigated businesses in KFTC proceedings.Footnote ⁷⁹

Additionally, the problem of an increasing incentive to prosecute on the part of a dual-function agency – as identified above in the EU – also exists in South Korea. The KFTC annually publishes its ‘Statistical Yearbook’,Footnote ⁸⁰ and a large portion of the report – more than fifty pages – is devoted to what the KFTC refers to as ‘Correction Performance’ and presents the number of cases in which the KFTC issued some type of fine or corrective remedy.Footnote ⁸¹ On the other hand, only three pages were devoted to the results of judicial review of the KFTC's actions.Footnote ⁸² The KFTC also conducts an Annual Performance Review wherein the performance of enforcement divisions within the agency is similarly measured by the number of cases that resulted in corrective measures or other remedies, and not by the eventual success rate in the courts.Footnote ⁸³

In fact, before the start of each year, each KFTC case division typically sets a goal for that year – in terms of the number of cases resulting in corrective measures – based on previous years’ data. Then, each division compares their goal with the actual number of cases to derive a percentage figure. Based on these percentages, each division of the agency is given a grade that is curved on a scale. The divisions that receive the highest grades are given advantages in compensation and promotion. Moreover, during the Korean Parliament's annual inspection of the KFTC in 2017, Members of Parliament condemned the ‘revolving door’ practice of ex-KFTC officers, listing suspected cases of anti-competitive behaviour by certain Korean conglomerates, and asking whether the KFTC was investigating these suspicious activities.Footnote ⁸⁴ In that year, no MP focused on the success rate of the KFTC in appeals, or whether the KFTC reached the correct decision.Footnote ⁸⁵ Additionally, the most prestigious awards given to KFTC investigators are the annual ‘KFTC-er of the Year’ and the monthly ‘KFTC-er of the Month’ awards. Historically, these awards have rewarded investigators with performance based on enforcement, not on the correctness of the decision. In 2017, the award for the ‘KFTC-er of the Year’ was given to the two investigators who were in charge of the investigation concerning the abovementioned American company facing the largest fine in the history of the KFTC.Footnote ⁸⁶

Notwithstanding the reasons set out above, the arguments for more adversarial features have been rejected multiple times by the Constitutional Court. First, in the same 2003 case as discussed above, the majority opinion held that the KFTC's existing process satisfies Article 12's due process requirements.Footnote ⁸⁷ In its decision, the Court specifically discussed the adjudicative process under the US FTC and found that there are notable differences in the legal systems and the economic realities between the US and South Korea, which justify the current Korean process.Footnote ⁸⁸ According to the Court, a balance must be struck between furthering (i) the principle of the rule of law – by adopting more court-like procedures involving an administrative law judge – and (ii) the advantages of having an administrative agency with expertise that decides consistently and efficiently.Footnote ⁸⁹ According to the Court, it is the intention of the legislature to find the appropriate balance in the current system, and it found that the current KFTC process satisfies due process requirements.Footnote ⁹⁰ While the Court's reasoning is unclear in certain parts,Footnote ⁹¹ what is clear is that it had considered the issue and held that the US-type adversarial procedures are not required under the Korean constitutional requirements of due process.

In 2016, the Court rejected, this time unanimously, a similar due process argument brought by a company that faced sanctions issued by the KFTC for bid-rigging.Footnote ⁹² The company claimed that the KFTC's current process violates the Korean Constitution's due process requirements. The Court, using language almost identical to that of the 2003 decision, held that the current process satisfies the standards for the same reasons advanced earlier.Footnote ⁹³ Therefore, the Constitutional Court has refused to declare that adversarial features – such as a neutral arbiter separate from the prosecutorial function, the right to cross-examine, or the right to access all evidence – are required for the KFTC's adjudication process on the grounds of due process. In fact, the Administrative Procedure Act of Korea – which is understood to already satisfy due process requirements in the context of administrative proceedings – provides for more inquisitorial and less adversarial features than the current KFTC proceedings.Footnote ⁹⁴

C. Alleged International Due Process Standard at Odds with Local Laws

In the EU and in South Korea, the international due process standard argument has been advanced based on the assertion that (i) competition procedures in these jurisdictions can be characterized as ‘criminal’ in nature and that (ii) competition agencies which have combined adjudicatory and prosecutorial functions, such as the European Commission and the KFTC, are becoming increasingly prosecutorial and, hence, have potential to be biased.Footnote ⁹⁵ The supporters of this argument contend that adversarial procedures are necessary to achieve the notion of due process, and more broadly, fairness and justice. Courts in these jurisdictions, however, have rejected the argument that an adversarial type of proceeding is necessary to satisfy the due process requirements under their local laws. To introduce such novel procedures, the courts have been asked to take a giant leap, often involving reinterpreting the applicable constitution or charter. Others have relied on an ambiguous provision of a Free Trade Agreement to argue for such change, to no avail.Footnote ⁹⁶

A. Is Adversarial Adjudication Better?

While no system in the world is purely adversarial or inquisitorial, some empiricists have tried to investigate the superiority of one model over another by conducting experiments based on simplified models of adversarial and inquisitorial procedures.Footnote ⁹⁷ Their studies, however, suggest that each system has its own advantages. Some found that adversarial methods are effective in combatting decision-maker bias,Footnote ⁹⁸ and others have found that the inquisitorial process is in fact a better mechanism to uncover ‘hidden’ information.Footnote ⁹⁹ More precisely, Allan Lind and others conducted a cross-cultural comparison of the effects of adversarial and inquisitorial processes and found that ‘adversary evidentiary presentation tends to overcome the biasing effect of pretrial expectancies about a defendant's guilt … and that adversary presentation moderates bias by making salient to a legal decision-maker the contrasting judgmental positions available’.Footnote ¹⁰⁰ On the other hand, a study by Michael Block and others concluded that ‘[i]nquisitorial methods resulted in a higher rate of revelation than did adversarial methods under conditions of private and asymmetric discrediting information in the possession of an interested party’.Footnote ¹⁰¹

Therefore, there is no strong evidence from these studies that the adversarial process is better than the inquisitorial process per se. There are no reasons to suspect that this conclusion would be any different in the context of administrative or competition proceedings. Although a more adversarial process may arguably lead to less decision-making bias based on the results of some of the empirical studies cited above, such reforms may create other types of problems such as a lower rate of revelation.Footnote ¹⁰² Additionally, these empirical findings cannot automatically be applied to real-world scenarios, since these studies are experiments conducted based on highly-simplified models of adversarial and inquisitorial processes.

In fact, in the United States and England, there are some legal scholars who believe that an inquisitorial procedure may be the solution to overcome the shortcomings of the current adversarial procedures in these jurisdictions.Footnote ¹⁰³ They argue that inquisitorial procedures have the advantage over existing adversarial procedures with respect to the commitment to truth and efficiency. Under an adversarial system, the court arguably should not stray from its passive role.Footnote ¹⁰⁴ If there is relevant information that a court finds to be missing, but has not been presented by the parties, a decision nonetheless must be made by the judge on the basis of the presented evidence. Under an inquisitorial system of justice, arguably the opposite is true: the court is expected to be active throughout the proceedings. In order to get to the truth or the ‘correct’ decision, the court is expected to probe.Footnote ¹⁰⁵ As an American scholar argued:

Additionally, some argue that the adversarial process is often more expensive and protracted.Footnote ¹⁰⁷ Arguably, parties engaged in adversarial litigation spend enormous resources before the trial even begins, including going through the infamous pre-trial discovery.Footnote ¹⁰⁸ The average length of a case is also arguably longer than in comparable inquisitorial courts.Footnote ¹⁰⁹ On the other hand, procedural rules under inquisitorial procedures have been characterized as more ‘compact’ or ‘efficient’, given that ‘the investigative and trial procedures including evidentiary rules are simpler and focused on the one objective of reaching an accurate verdict’.Footnote ¹¹⁰ While these arguments tend to generalize what are in reality very complex legal procedures in different jurisdictions, it is evident that there is no clear superiority of one procedure over another.

It is thus puzzling why the supporters of due process argue that competition proceedings should adopt adversarial features. One explanation could be that there is a certain ‘reflexive’ anti-inquisitorialism in certain parts of the world such as the United States.Footnote ¹¹¹ Some go as far as to say that ‘avoiding inquisitorialism is taken to be a core commitment of [America's] legal heritage’.Footnote ¹¹² They argue that the American legal system – characterized by its adversarial nature – reflects a culture that is ‘pervaded by mistrust of both concentrated governmental power and concentrated economic power’.Footnote ¹¹³ Some find that such sentiments can now be observed around the globe, especially in jurisdictions where there has traditionally been a strong inquisitorial tradition.Footnote ¹¹⁴

B. Problems of Transplantation

It is not far-fetched to say that ‘[i]f scholars on comparative law agree on anything, it is the hazards of legal transplants, especially between civil law and common law systems’.Footnote ¹¹⁵ There are indeed many foreseeable practical problems if the alleged international due process standard were to be adopted in jurisdictions with existing inquisitorial procedures.

To illustrate this point, it is important to remember that the US FTC's adversarial adjudication is intricately connected to the larger American tradition of adversarial litigation in general. For instance, although the FTC has not officially adopted the Federal Rules of Evidence or the Federal Rules of Civil Procedure – two important sets of procedural laws governing US federal trial courts – the FTC's adjudicative rules are largely derived from such federal rules. The FTC's adjudicative rules have often been revised so that they are aligned with these federal rules. For instance, when the US Congress adopted new rules stating that inadvertent production of electronically-stored documents will not result in a waiver of privilege under certain conditions,Footnote ¹¹⁶ the FTC, soon after, modified its rules to adopt essentially the same rules for its own proceedings.Footnote ¹¹⁷ The ALJ will also typically regard cases interpreting the federal rules as persuasive authorities in interpreting the FTC's procedural rules.Footnote ¹¹⁸

Thus, the FTC's adversarial adjudication is possible against the backdrop of complex procedural laws and rules developed in the context of a long tradition of adversarial litigation. The FTC's adjudication process is not a sui generis process. Yet, the alleged international due process standard envisions all competition jurisdictions – including those which lack an adversarial tradition – adopting certain adversarial features. Many practical problems are foreseeable. For instance, in Korea, there has traditionally been much greater emphasis on written proceedings than oral proceedings, in both civil and criminal proceedings as well as in administrative proceedings.Footnote ¹¹⁹ The rules and customs of the Korean courts have developed under the assumption that the role of oral proceedings is supplementary rather than critical.Footnote ¹²⁰ Additionally, even in criminal proceedings in Korea, where defendants enjoy significant protection pursuant to their constitutional rights, the rules of evidence lack important adversarial features.Footnote ¹²¹ For instance, there is no US-style attorney-client privilege in Korea, and Korean prosecutors are able to seize what would be considered privileged materials in the US. In an actual case, Korean prosecutors were able to seize a copy of a legal memo written by a lawyer concerning their legal strategy and analysis.Footnote ¹²² In this context, a KFTC adjudication process that centers around a trial-like oral hearing which provides equally-applicable rules for both the agency and the investigated business would be idiosyncratic.

Further, even if certain rules could be directly imported from other jurisdictions, it is a separate question whether there is sufficient social capital in terms of experience and resources to implement such a system and set of rules. If a system similar to the US FTC process were to be adopted, what type of training would a hearing officer and the KFTC staff receive? Where would investigated businesses, especially those that are not multinational companies, find lawyers well-versed in the procedures of an adversarial trial quite foreign to their home jurisdiction? Would the KFTC staff, the majority of whom are career public servants, be replaced by lawyers trained in adversarial proceedings?

Much resistance already exists in Korea against adopting allegedly ‘adversarial’ elements, as observed with the recent effort to introduce jury trials for criminal proceedings. Jury trials have been introduced in Korea to great fanfare in 2008, but their availability is limited to few specific crimes. Even then, very few cases in fact go to a jury.Footnote ¹²³ According to the Korea Legislation Research Institute, ‘since the Korean criminal trials are based on the inquisitorial tradition, Korea lacks the sufficient resources and infrastructure for a full-scale jury trial’.Footnote ¹²⁴ In this context, introducing adversarial procedures to these this jurisdiction may create even more due process or procedural fairness problems.

C. What Then Can Be Done?

In addition to the lack of legal basis to introduce an adversarial process in European and South Korean competition agencies, such procedural reforms would pose many significant practical problems. Although the problems raised by the supporters of due process – such as the argument that these agencies are able to impose ‘criminal’-like fines, or that they face strong incentives to maximize prosecution – should be addressed, the argument that adversarial features must replace existing procedures on the grounds of due process is far from the automatic or logical response.

Instead, there may be solutions within the inquisitorial model and tradition that can be more easily applied to these jurisdictions to tackle the problems raised by the advocates of due process. According to Chrisje Brants,

In other words, introducing adversarial features such as a trial-like hearing or cross-examination is far from being the only solution. Improving the written laws, providing easy access to judicial review, and improving internal monitoring and control would be easier and more organic ways to correct the procedural problems identified in the EU and South Korea, such as excessive prosecutorial incentives. These mechanisms already exist in these jurisdictions and can be improved with a focus on addressing the identified problems. In fact, in the EU for instance, there have been efforts to provide effective checks and balances through the publication of enforcement guidelines, greater judicial review, and internal monitoring. More recent cases in the CJEU have limited the traditional ‘margin of discretion’ provided to the Commission.Footnote ¹²⁶ The Commission has tried to improve the use of their ‘peer-review panels’ – panels composed of Commission staff who are not assigned to the particular case (as a form of internal control) – as well as their economics team.Footnote ¹²⁷ The Commission also relies on their Legal Service, which is independent from the DG Comp and must be consulted on all draft decisions, and whose opinion is provided to the college of commissioners.Footnote ¹²⁸

While it may be a distant possibility that even in these jurisdictions, there would one day be sufficient legal context and experience to introduce an adversarial process without significant negative consequences, these solutions that have been part of the inquisitorial model from the beginning should be the first recourse.