Women & Antitrust: Voices from the Field – Vol. II, Kristina NORLANDER

Kristina Nordlander (Curation & Foreword)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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In November 2020, the second volume of Concurrences’ Women & Antitrust series was published in cooperation with Women’s Competition Network (WCN) following a first volume published in April 2020 in cooperation with W@Competition.

This work provides a collection of 30 interviews arranged according to the professional background of their authors. It includes 14 contributions from enforcers and academics (part I), 7 contributions from in-house counsels and consultants (part II) and finally 9 contributions from lawyers (part III).

As Kristina Nordlander (Sidley Austin) notes in the foreword, the reflections come from many of the leading lights in competition law, whose different roles as in-house counsel, enforcers, private practitioners, academics or judges provide a very extensive and interesting global view of current competition law. Not only they cover a wide range of hot topics in competition law, such as compatibility with environmental policy, digital economy or the impact of the Covid-19 pandemic, but they also talk about personal experiences and opinions regarding the gender debate and give advice to young women who want to build their career in competition law. Covering this scope, the book is aimed at inspiring and encouraging younger generations.

Regarding the compatibility of environmental interests and EU competition law, Sofia Oliveira Pais (Catholic University of Portugal) considers that the current framework is appropriate, as Article 101(3) TFEU allows the European Commission and national authorities to justify agreements aimed at protecting the environment as long as they do not unnecessarily restrict competition. Inge Bernaerts (DG COMP) thinks that competition policy cannot and should not replace or fill the gaps left by environmental and climate policy. Stéphanie Yon-Courtin (European Parliament) adds that competition policy should, however, contribute to the EU objectives as defined by Member States and representatives of citizens.

A topic broadly discussed by US authors is the US–EU relationship. While Diane Wood (US Court of Appeals for the Seventh Circuit) believes that there are very few differences between EU competition law and US antitrust law on a case-by-case and day-to-day basis, Maureen Ohlhausen (Baker Botts) says that despite a certain degree of convergence between the US and the EU merger reviews, there has always been more divergence in single-firm conduct liability standards. She states that these divergences stem from different economic histories and that, unlike Europe, there has been little state ownership of companies in the United States, which means that simply being big is not suspect under US antitrust law unless it is accompanied by conduct that excludes competitors to the detriment of consumers. Gail Levine (Federal Trade Commission) agrees, saying that one can inform the other, but neither can make anyone else’s analysis a substitute for its own independent review.

The authors also comment on their own national or regional challenges and amendments. Thus, Kathleen Foote (California Department of Justice) talks about the new, ambitious Californian data privacy law, that she considers as the closest corollary in the US to the EU standard. She also stresses that the Cartwright Act contains much more details than the Sherman Act in spelling out what is unlawful. Likewise, Birgit Krueger (German Competition Authority) explains how exactly the upcoming 10th amendment to the German Competition Act (GWB) would go far beyond their traditional rules on abuse of dominance. She also mentions the creation of a new Digital Economy Unit, composed of an interdisciplinary team of lawyers, economists and mathematical/technical experts. Angela Huyue Zhang (University of Hong Kong) talks about the incompatibilities between the approaches taken by Chinese agencies and those taken by Western competition authorities. She explains that the law is generally perceived as a regulatory tool in a communist country, and that it is thus comprehensible that Chinese competition law has also been used to reduce and stabilise prices in times of inflation. Xiaojin Huang (Tencent) presents as one of China’s biggest challenges the digital gap between urban and rural areas which has far-reaching consequences when it comes to education. Furthermore, she mentions the problem of multiple data protection laws in China, and advocates for a more unified legal framework. Michal Halperin (Israel Competition Authority) explains in the context of the Price Squeeze case, Colgate case and the Bank Mizrahi-Tefahot/Bank Igud case how Israel benefits from its Competition Tribunal’s capacity to oversee an agency’s conduct and ensures that their decisions maintain a reasoned, well-founded and measured nature. Regarding developing jurisdictions and young agencies, Eleanor Fox (New York University) explains why equality of opportunity is and should be a value of antitrust and Deborah Feinstein (Arnold & Porter) takes the view that it is critical to have not only lawyers but also economists involved in cases.

Compliance remains a much-discussed topic. Johanne Peyre (Pearson) clarifies the three must-have pillars of a compliance programme: prevention, detection and reaction. Additionally, she illustrates the importance of learning: Since antitrust risk is mostly of a behavioural nature and the organisation relies on employees to behave in accordance with the rules, one cannot expect from them to adhere to principles or regulations they do not know or understand. Anne Riley (Independent Antitrust Compliance Consultant) thinks that in order to effectively disseminate a compliance culture on a global level, the “compliance fatigue” should be avoided by integrating compliance training on various topics so that businesses understand compliance requirements in a more holistic way.

The digital economy is and remains the most discussed topic of the book. While Michal Halperin (Israel Competition Authority) mentions that the Israel Competition Authority does not have a specific policy regarding the digital sphere, Gabriella Muscolo (Italian Competition Authority) explains that the emergence of the digital economy has become one of the main priorities of the Italian Competition Authority, which recently published a set of Guidelines and Policy Recommendations relating to the Digital Sector. Deborah Feinstein (Arnold & Porter) considers that antitrust law has continuously evolved to deal with a multitude of new market realities and business practices. However, Elisabetta Righini (Latham & Watkins) points out that it is a critical moment, as evidenced by the fact that the European Commission and other regulators are considering what new tools they will use to deal with digital issues. She explains the European Commission’s considerations of a three-pillar approach consisting in a new competition tool, ex ante regulation of digital platforms and vigorous enforcement of existing antitrust rules. Stéphanie Yon-Courtin (European Parliament) agrees, noting that data has become the new oil of the economy and that digital platforms have gained such a central position that they can become even more powerful than Member States by collecting important data that others cannot. Rachel Brandenburger (Hogan Lovells) adds that the digital economy concerns go well beyond antitrust and competition law issues and include privacy, data protection, consumer protection, advertising and taxation issues, as well as concerns about digital addiction, freedom of speech, fake news and the impact on election voting. Furthermore, Grania Holzwarth (Deutsche Telekom) thinks that there is a more fundamental challenge for the telecoms industry when it comes to scale and the roll-out of digital infrastructure. Finally, Sarah Biontino (Biontino Europe) states that the GAFAM decisions are precursors to proceedings in other jurisdictions and might act as benchmarks. Stéphanie Yon-Courtin (European Parliament) agrees, specifying that the European Commission should use the Google/Fitbit case to illustrate the change of paradigm.

The digital sector is also discussed in the context of the current Covid-19 crisis. María Luisa Tierno Centella (DG COMP) explains that the fact that most industries now have a digital component has increased with the Covid-19 crisis. Stéphanie Yon-Courtin (European Parliament) considers that while some of the changes brought about by the Covid-19 crisis are welcome, they may also aggravate existing issues such as increasing market concentration and the growing power of digital platforms. One of the main challenges would be to learn from this crisis and not to go back to “business as usual.”

However, the effects of the Covid-19 crisis are also discussed in other areas of competition law. Angela Huyue Zhang (University of Hong Kong) fears that antitrust law will be politicised in light of growing Sino-US tensions and the Covid-19 pandemic. While Inge Bernaerts (DG COMP) thinks that with Covid-19 as with the financial crisis of 2007–2008, competition rules have been proven to have a lot of in-built flexibility to cope with crises, Deirdre Trapp (Freshfields Bruckhaus Deringer) explains that following the financial crisis of 2008–2009, public trust in the market model fell significantly, which had impacts on the wider economy, some of which continue to this day. She declares that to restore confidence in the market economy, there needs to be both strong enforcement of competition law and effective consumer protection, so that competition can take place on the merits. Anna Vernet (DG COMP) explains that many NCAs have opened investigations into various situations where companies have tried to exploit the Covid-19 crisis at the expense of consumers. Many of these cases concern the pricing of essential goods and the refusal to supply them to competitors, but the saddest examples are excessive prices in the funeral services sector. Regarding State aid, Stéphanie Yon-Courtin (European Parliament) says that she supports the application of the Temporary State Aid Framework for as long as necessary during the recovery period. Furthermore, she warns against blaming one or another country for providing more financial assistance to their companies, as, regarding the existing risk of market distortions and increased divergences between countries, not all Member States are able to provide the same level of support to their firms.

Privacy is another major topic of the book. While Janet McDavid (Hogan Lovells) strongly doubts that privacy will become an issue in US antitrust law, Christine Varney (Cravath, Swaine & Moore) says that it is unclear at this point whether the US antitrust framework is capable of dealing with a privacy-antitrust hybrid approach to big data, or whether it even should. The collection of data has many pro-competitive effects, but there are also some concerns regarding the use of dominant position. She argues that it is important to find the right balance between regulating both the privacy and competition aspects of data aggregation.

Regarding the relationship between economics and law, Gabriella Muscolo (Italian Competition Authority) says that economics is important in antitrust analysis and that the Italian Competition Authority uses economics in particular in the assessment of price conducts and in vertical agreements. Though, Laurence Idot (University of Paris II Panthéon-Assas) considers that economists are needed in antitrust cases, not to calculate the amount of the fine in individual cases, but to help qualify the conduct, when necessary.

Finally, when the authors are asked what the biggest challenges for competition law will be in the future, the answers vary. Many authors mention the goals of global competition policy. Deborah Majoras (Procter & Gamble) says that at a high level, the biggest challenge for antitrust enforcers will always be deciding when to intervene and when to keep hands off. Suzanne Wachsstock (Walmart) seems to respond to this, arguing from a practitioner’s perspective that the most pressing question is how best to advise in a world of inherent uncertainty—trying to anticipate whether, how and how quickly antitrust enforcement and even legislation may change over the short- and medium-term. According to Janet McDavid (Hogan Lovells), the biggest antitrust issues in the US and globally question whether the focus should remain on consumer welfare or shift to a broader set of issues, such as “big is bad.” Lisa Phelan (Morrison & Foerster) thinks the focus will be on the healthcare industry, government contracting and cartels that affect taxpayers. Anna Vernet (DG COMP) stresses the importance of the ECN, which would be a role model for how Europe can work. Diane Wood (US Court of Appeals for the Seventh Circuit) is convinced that “soft harmonisation” is the right approach, when one asks how to ensure more competitive markets. As the most interesting challenges for competition law, Sofia Oliveira Pais (Catholic University of Portugal) names the green and digital world and Anne Riley (Independent Antitrust Compliance Consultant) the debate on artificial intelligence/algorithmic collusion.

Though, the authors not only talk about the hot topics of competition law, but also share experiences from their own professional careers, share their views on the gender debate and give valuable advice to future generations. Thus, Eleanor Fox (New York University) tells how she entered New York University School of Law in 1958, at that time one of the rare universities admitting female students. María Luisa Tierno Centella (DG COMP) says that in all the cases she has seen, there was no woman involved in cartels, explaining that women maybe have had fewer opportunities to be involved in them and/or they may be less tempted to break the law. While Sarah Biontino (Biontino Europe) highlights that even today, there is only a small handful of women in power at the European Commission and that it took 61 years to have a woman president of the European Commission, Laurence Idot (University Paris II Panthéon-Assas) explains that in France, academic thinking and research are less dominated by the gender than by the distinction between private and public law, and cites as an example the third president of the former Conseil de la concurrence, who was a woman. She agrees with Anne-Sophie Choné-Grimaldi (Paris Nanterre University) that requiring gender parity generally amounts to a form of positive discrimination in favour of women in so far as it contradicts the idea of competition based on merit. Anne Riley (Independent Antitrust Compliance Consultant) has also never seen it to be a real challenge to work as a female antitrust lawyer, but she thinks this might be due to the fortunate circumstance that her husband gave up his career to take care of their children. Finally, Johanne Peyre (Pearson) advises getting more men to mentor women so that they get to be confronted with the bias and struggle women face in the workplace and get used to taking an active role in finding solutions.

With regard to advice for future generations, Diane Wood (US Court of Appeals for the Seventh Circuit) and Birgit Krueger (German Competition Authority) think that competition law is fascinating because it involves not only hard-headed economic analysis of business practices, but also the social analysis of firm behaviour, individual motivations, strategic thinking and game playing, and because new legal issues and special market conditions are always emerging. On the other hand, Rachel Brandenburger (Hogan Lovells) says that a legal training gives skills for analysing and discussing issues and communicating effectively—essential skills whatever field one ends up in. Inge Bernaerts (DG COMP) recommends staying curious and adds that if one feels that they have stopped learning, it is probably time for a new challenge in their current job or in another one. Stéphanie Yon-Courtin (European Parliament) thinks that it is crucial to understand others’ mindsets before making their own judgment. Gail Levine (Federal Trade Commission) says that facts and speed matter. One has to be able to gather the right facts and assemble the right people to make decisions quickly. Sarah Biontino (Biontino Europe) guides not to try too hard. Lisa Phelan (Morrison & Foerster) also advises not to try to plan every move, saying that she had four children while litigating cases all over the country and rising through the ranks of the DOJ. Deborah Majoras (Procter & Gamble) recommends young lawyers to go to work every day willing to lose their job, not wanting to lose it, but willing to lose it, in order to stay authentic. Deborah Feinstein (Arnold & Porter) and Maureen Ohlhausen (Baker Botts) advocate to take initiative and to ask for the next opportunity, noticing that women are often modest about claiming credit for their ideas and achievements. Deborah Garza (Covington & Burling) agrees, observing that lawyers who are the happiest with their career are those who took ownership of it from the beginning. Christine Varney (Cravath, Swaine & Moore) encourages to work for good people. Regarding the work-life-balance, Xiaojin Huang (Tencent) says that one needs to understand and accept the limits of the time and the capacities of their partners as well as themselves, to foster inner peace in this high-paced world. Deirdre Trapp (Freshfields Bruckhaus Deringer) and Anna Vernet (DG COMP) agree that, at least since the Covid-19 pandemic, the possibilities of working virtually can facilitate good work-life balance.

In summary, the book’s aim to serve as inspiration and encouragement to younger generations is fully achieved and even grows beyond its own aspirations. The personal experiences of many of the leading lights in competition law are not only very inspiring and fascinating, but their discussions on the hot topics of competition law are highly informative. The book catches the spirit of the age and can thus be warmly recommended not only to future generations.

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Rebekka Schlieper, Women & Antitrust: Voices from the Field – Vol. II, Kristina NORLANDER, February 2021, Concurrences N° 1-2021, Art. N° 98932, pp. 264-266

Publisher Concurrences

Date 18 November 2020

Number of pages 408

Visites 88

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