Speaking Notes For Melanie Aitken Senior Deputy Commissioner of Competition

Remarks to the ABA Post-Annual Meeting

Whistler, BC
August 15, 2007

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Thank you, Kathy, for your kind introduction.

I am delighted to join you on behalf of our Commissioner, Sheridan Scott, who very much regrets she cannot be here, and to welcome you to beautiful Whistler, BC. While we recognize it will be tough to compete with your last Canadian gathering--to Quebec in the deep freeze of January-- we do so like being the beneficiaries of the Section's attachment to Canadian destinations. We hope you will enjoy the spectacular mountain setting, and that the weather will continue to cooperate.

In my brief remarks this morning, I want to touch on two topics. They are linked in that they both illustrate and reinforce the strong, and to us very important, ties between our Agency and you. By "you", I refer both to our enforcement counterparts at the Department of Justice, the Federal Trade Commission and State Attorneys General offices, as well as to this ABA Antitrust Section.

First, to address our relationship with your agencies, it is almost trite to observe that, with increasing cross-border activity, from mergers to less positive cartel activity, it is ever more important for us to look for ways that we can perform our job as enforcement officials more effectively and efficiently. To that end, we in Canada have enjoyed the opportunity to exchange on all manner of enforcement, policy and practice issues with our colleagues at your Agencies as a result of their extraordinary generosity and interest. In turn, we have done our best to reciprocate. As a consequence, the notions of positive comity, about which we hear so much talk, have progressed well beyond mere motherhood ideals; today, we can point to real and tangible results. Of course, this is of tremendous value not only to us at the Bureau, but to all participants in the Canadian economy, which only profits from sound and balanced antitrust enforcement.

This cross-border cooperation can and does take many forms. Taking mergers as the example, at the traditional end of the spectrum we continue our valuable cooperation at the information collection and issue identification stages. In that regard, it's been my privilege since joining the Bureau to reap the rewards of ever stronger links at all levels, from the front office to Bureau and section staff. Indeed, I can readily think of two merger matters this past year where the extent of cooperation--indeed coordination--in the reviews, which included sharing preliminary analytical results, bi-weekly meetings and joint interviews, materially advanced our ability to conclude our inquiries expeditiously and with confidence in our findings. Perhaps I will have an opportunity to expand on this issue during tomorrow's merger enforcement panel, but suffice to say that we in Canada have found this extensive cooperation to be particularly helpful, substantively and in considering creative approaches to novel challenges, in the current environment of multiple multi-jurisdictional bids.

As important as this basic cooperation is, there is more. The relationship of trust confers still further opportunities to move along the comity continuum. I allude here to the fact it has allowed the Bureau, in circumstances where the anti-competitive effects in Canada are similar to those in the U.S., to explore potentially coordinating our remedies. While the Bureau could never "defer" per se to another jurisdiction, we do recognize that there can be real advantages, in the right circumstances, to merging parties, third parties, and the Bureau alike, in the efficacy and viability of a shared remedy. The reality is that, in some circumstances, we face the same or very similar challenges in designing and implementing remedies, to cure the same or a very similar concern. Where appropriate, we strive to align remedies, and in cases with very similar markets and competition issues, we are open to joint discussions and negotiations. While I hasten to add that we by no means would restrict our consideration of such coordination to the U.S., and indeed have found occasions where it was appropriate to coordinate with other jurisdictions (most notably, the EU), it is fair to say, and no surprise given the extent of our substantive convergence, that our record is more extensive so far with the U.S.

Certainly, it is early days still, and we must remain vigilant to ensure that the anticipated anti-competitive Canadian impacts are adequately addressed (in those rare cases where we have serious concerns). That said, there are recent cases where we have been able to examine, and ultimately accept, a remedy negotiated or imposed in the U.S. as an adequate fix for the Canadian issues. As an example, I would point to our acceptance of the divestiture of Guidant's interventional cardiology business to Abbott, required by the Federal Trade Commission in the Boston Scientific acquisition last year.

In addition to such cooperation and coordination on specific enforcement matters, our ongoing and frequent dialogue with institutions as rich in experience and perspective as the Department of Justice and the Federal Trade Commission has advanced our constant quest for the most sophisticated economic and other tools, and our search for always "better practices", to quote Commissioner Kovacic. We benefit enormously from this exchange, informed further by the debate so vigourously pursued not only within your Agencies but--bringing me to my second point-- your private bar and academic community.

A second way in which we in Canada have profited so significantly from our cross-border relationships directly concerns this Section leadership. The following is just one example.

Inspired by what we perceived to be the incredibly dynamic and productive nature of this Section, we prevailed upon your very own Don Klawiter to join Cal Goldman and others to address what some members of the Bureau and the private bar had begun to feel was an enormous wasted opportunity. Specifically, we recognized that relations between our bar and the Bureau, for a variety of reasons, had faltered in recent years; as a result, our recent efforts at collaboration had been disappointing. In response, we established a Taskforce on Collaboration, appointing Don, Cal and several representatives from the CBA Executive and the Bureau, to explore whether there were ideas and initiatives that we might borrow from the positive experience of this Section to reinvigorate the joint inquiry and debate, and to break down, to the extent possible, the barriers that were inhibiting free exchange between the two constituencies.

I am delighted to report, and James Musgrove, the Chair of the CBA Section, is here joining me in this announcement, that the Taskforce completed its work this spring. What we offer to the CBA Section Executive and Senior Management at the Bureau, respectively, are some much-needed guiding principles to promote the airing and frank assessment of competing arguments and perspectives. In doing so, we believe we can facilitate the dialectic so critical to advancing our shared goal of developing the best possible competition law, policy and practices. As well, we've proposed several tangible "first projects" to test the ground under our feet. We are cautiously optimistic that, in following the shining example of this Section, in its enormous contribution not only to the U.S., but the global antitrust community, we are beginning a new chapter in Canadian bar/Bureau relations to the sure benefit of us in Canada and, we hope, those beyond our borders.

Thank you for the opportunity to join you here and to share a few of our thoughts with you. We certainly look forward to realizing upon the promise of our ever stronger cross-border relationships, and to working with our closest neighbors and valued counterparts.