What Every Multinational Should Know About … Conducting an Antitrust and Fair Competition Compliance Self-Check

As detailed in Part I of this risk-assessment self-check series, we are publishing a series of self-check assessment guides covering the key regulatory and contractual risk areas for multinational companies. This article provides Part VIII, which is a self-check assessment of antitrust and fair-competition compliance. Previous self-check risks assessments are found Part I (general compliance), Part II (buy-side contracts review), Part III (sell-side contracts review), Part IV (supply chain integrity compliance self-check), and Part V (antiboycott self-check), Part VI (customs compliance and tariff-risk review), and Part VII (economic sanctions compliance).

Antitrust and fair-competition compliance present persistent and often underestimated risks for multinational companies. Unlike many regulatory regimes, antitrust exposure can arise from ordinary commercial activity, such as pricing discussions, distributor relationships, trade association meetings, or informal information exchanges with competitors, even without clear intent to violate the law. Enforcement priorities have also expanded beyond traditional price fixing to include wage-fixing and no-poach agreements among employers, bid rigging in public and private procurement, the use of pricing algorithms and shared data tools, conduct that excludes or impedes rivals, and interlocking directorates. Enforcement authorities worldwide increasingly focus on how companies manage these risks in practice, examining not only formal policies but also whether business teams understand competitive boundaries.

This self-check is designed to help companies assess whether they have a functioning, risk-aligned antitrust and fair-competition compliance framework. It focuses on governance, risk assessment, training, oversight, and response mechanisms, with an emphasis on whether compliance expectations are embedded in day-to-day decision-making. A “no” answer does not automatically indicate a violation, but it may signal a program gap that warrants further review or compliance enhancement.

I.  Governance, Risk Assessment & Program Design

• Is there a designated owner of the antitrust compliance program with adequate resources, autonomy, and direct access to senior leadership or the board of directors?
• Are disciplinary measures and compensation incentives aligned with antitrust compliance, so that violations carry consequences and compliant conduct is not penalized?
• Has your company conducted a documented antitrust and competition risk assessment tailored to its specific products, services, markets, and geographic footprint?
• Does the assessment consider market structure and conduct risks, including: (1) market share, market power, and concentration levels; (2) pricing authority, discounting practices, and approval processes, including the use of pricing algorithms, revenue-management software, or third-party data services; (3) participation in trade associations, industry groups, or benchmarking initiatives; (4) other potential information exchanges with competitors, including formal and informal settings; (5) participation in competitive bids, tenders, and public or private procurement processes; (6) agreements or information exchanges with other employers regarding wages, benefits, or hiring, including no-poach and non-solicitation arrangements; (7) officer or director positions held at competitors (interlocking directorates); and (8) the use of third parties such as distributors, agents, franchisees, or joint ventures?
• Where your company has significant market share, does it review exclusive dealing, loyalty or bundled rebates, tying, refusals to deal, and similar exclusionary conduct for antitrust risk, including under the lower dominance thresholds in the European Union and other non-U.S. jurisdictions?
• Are antitrust risks reassessed when the business changes, including: (1) acquisitions or divestitures; (2) entry into new markets or customer segments; (3) new pricing models, rebate structures, or sales strategies; or (4) strategic partnerships, joint ventures, or collaborations?
• For acquisitions, joint ventures, and minority investments, are pre-merger notification obligations evaluated in each relevant jurisdiction, and are clean-team and gun-jumping protocols used to control information exchange and integration planning before closing?

II.  Policies & Practical Guidance

• Does your company maintain clear, accessible antitrust and fair-competition policies tailored to its business model?
• Do policies go beyond legal prohibitions and provide practical guidance on: (1) interactions with competitors, including information sharing and benchmarking; (2) trade association participation and limits; (3) pricing, discounts, and rebate decisions; (4) bids and tenders, including subcontracting with competitors, and complementary or cover bids; (5) hiring, compensation, and recruiting practices involving other employers; (6) the creation of business documents and the use and preservation of ephemeral or off-channel messaging applications; and (7) differences across jurisdictions?
• Are policies reviewed and updated periodically to reflect changes in law, markets, or business practices?

III.  Training & Awareness

• Is antitrust training provided on a risk-based basis, tailored to your company’s industry and to the specific risks of each role, with enhanced, role-specific modules for sales, marketing, procurement, pricing, bid and tender teams, human resources and recruiting, data science and pricing-technology personnel, employees who attend trade association meetings, business development and M&A teams, and senior leadership and directors?
• Does training include realistic scenarios relevant to your company’s operations (e.g., trade shows, customer negotiations, joint ventures, bid submissions, recruiting discussions with other employers, and the use of pricing tools)?
• Is training refreshed periodically, delivered in relevant local languages, and provided promptly to new hires and employees moving into high-risk roles?
• Is training tracked and documented?

IV. Day-to-Day Controls & Monitoring

• Are pricing decisions and competitive strategies subject to appropriate review or oversight based on risk?
• Are pricing algorithms, revenue-management software, and third-party data or pricing services reviewed before adoption and periodically thereafter to confirm they do not use or pool competitors’ nonpublic information or align pricing among competitors?
• Are controls in place to manage information flows, including the handling of competitively sensitive data?
• Are bid and tender submissions subject to controls confirming that prices and terms were independently determined, including review of teaming and subcontracting arrangements with competitors?
• Are human resources and recruiting practices reviewed to confirm your company does not agree with other employers on wages, benefits, or hiring, or exchange competitively sensitive compensation information?
• Are trade association activities monitored or guided to reduce competition risk?
• Does your company periodically test or review whether antitrust controls are working in practice?

V. Third-Party & Collaboration Risks

• Are joint ventures, strategic alliances, and other collaborations with competitors structured with safeguards, such as firewalls and limits on information sharing, to prevent coordination beyond the legitimate scope of the collaboration?
• Are distributors, agents, or partners given appropriate guidance on fair-competition expectations?
• Are contractual arrangements reviewed for competition-related risk, such as exclusivity, resale pricing, market or customer allocation, and non-compete or non-solicitation clauses?

VI. Incident Response & Continuous Improvement

• Do business teams know when antitrust review is required and how to escalate questions to legal or the compliance function?
• In light of government whistleblower programs, including the U.S. Department of Justice Antitrust Division’s whistleblower rewards program, which offers monetary awards to individuals who report criminal antitrust violations, are internal reports escalated to counsel within defined timeframes so your company can investigate and evaluate leniency or self-reporting before a whistleblower or another company reports the conduct to authorities?
• Is there a confidential, non-retaliatory channel, including an anonymous option, for employees and third parties to report suspected antitrust violations, and are reports logged, triaged, and tracked to resolution?
• Does your company have a process to assess promptly whether to seek leniency or self-report in each affected jurisdiction, recognizing that leniency is often available only to the first company to come forward?
• Is there a defined process for responding to potential antitrust issues, dawn raids, or regulatory inquiries?
• Are suspected violations investigated promptly under the direction of counsel to preserve privilege, with appropriate remediation and documentation?
• Are lessons learned from incidents, audits, or enforcement actions fed back into training and program design?

If you would like help analyzing the results of your compliance self-check, please reach out to the authors or your Foley relationship attorney.

Foley’s Antitrust Practice counsels multinational companies on compliance program design, risk assessments, and industry- and role-specific training, and represents clients in government investigations, merger reviews, and litigation in the United States and around the world.

Would you like more practical compliance tips like these? The Foley International Trade & National Security Team is monitoring all international trade, enforcement, and compliance developments, which we post as they occur on our Tariff & International Trade Resources blog. Click Here To Register for our email list to receive future emails and practical international regulatory compliance tips, including our weekly Tariff-ied! This Week in International Trade and What Every Multinational Should Know articles.

Our white paper on Managing Import and Tariff Risks During a Trade War outlines a 12-step plan to help importers navigate the tariff and international trade risks in the current environment, while the companion white paper on Managing Supply Chain Integrity Risks provides practical advice to deal with heightened supply chain risks pertaining to goods imported into the United States, including the increasing use of detentions by Customs.