Women & Antitrust. Voices from the Field – Vol. I, Evelina KURGONAITE (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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On 15 April 2020 the first volume of the Concurrences’ Woman & Antitrust series has been published in cooperation with W@Competition and will be followed by a second volume in cooperation with Women’s Competition Network.

The present work is quite exceptional as it constitutes the first collection of contributions from 53 important women in competition law and, more importantly, because of its almost unmatched diversity of content. In this book, women from 20 countries and 6 continents, who are representatives of competition authorities, lawyers in major international law firms or representatives of multinational corporations, express their views. In short, the spectrum could not be broader.

So it is clear that the book is not categorised in terms of content, but according to the milieu of experience. The three parts include 14 contributions from enforcers and academics (part I), 5 contributions from in-house counsel (part II) and finally 6 contributions from lawyers (part III). These are interviews, some of which provide a very personal point of view of important players in international competition law.

Obviously, competition policy is treated by the authors. Cani Fernández (Cuatrecasas) observes that young people, being passionate about ideals, often study law in order to defend human rights or study economics in order to fight against poverty. She notes that competition policy may actually serve both these purposes. Alejandra Palacios (COFECE) seems to agree. She illustrates that a study guided by COFECE shows, inter alia, that the impact of market power is larger in lower-income households and concludes that competition policy is a governmental tool to alleviate inequality. Teresa Moreira (UNCTAD) explains UNCTAD’s important role in advising developing countries to adopt and implement competition and consumer protection laws. She stresses the importance of international cooperation, also in relation to the digital economy, so that it would be possible to tackle challenges for consumers and business globally. Patty Brink (US DoJ) also describes the importance of global markets and the international cooperation of several competition agencies, by emphasising that there were only 30 worldwide at the beginning of her career.

Today, the question of competition policy often leads to the question of national champions. Karin Lunning (SCA) states that competition law enforcement should not be political, because promoting competition independent of political pressures would be key to creating truly competitive European companies that could produce better products and offer lower prices to consumers. On the contrary, Martina Maier (Siemens) is convinced, regarding the Siemens/Alstom transaction, that the prohibition reflects a missed opportunity for Europe to create a strong European company for international competition. She considers that the main problem for the deal was the Commission’s backward-looking and data-based approach, which does not match economic realities.

The most discussed topic in this book is the digitalisation. Sarah Cardell (CMA), Beatriz de Guindos (CNMC) and Maria Jaspers (DG COMP) agree: Digital is the biggest challenge of competition policy. Teresa Moreira (UNCTAD) thinks that a holistic approach that involves different policy areas, as well as competition, is necessary, so that the digital economy work for the many, not just the few. Renata Hesse (Sullivan & Cromwell) notes that there is no need for a fundamental rethink of the antitrust regime framework, but that it is important to keep pushing ourselves and both the law and the economics forward. Karin Lunning (SCA) also thinks that the existing Swedish competition law framework is fit for the digitalisation, nevertheless they are adapting and developing their enforcement activities. They have, for example, launched a market study on the function of competition on digital platforms in Sweden. Digital markets are also important in Mexican antitrust enforcement. Alejandra Palacios (COFECE) explains that COFECE actually analyses a merger notification between Walmart and Cornershop, a two-sided digital platform for delivering groceries. Heather Irvine (Bowmans) admits that they are a bit behind the global curve on these issues, although the president is concerned about the impact of the Fourth Industrial Revolution on South Africa. The Danish Competition and Consumer Authority however established a new unit which is responsible for the enforcement of competition rules in cases concerning digital platforms. Bitten Thorgaard Sørensen (DCCA) clarifies that this new unit will focus, inter alia, on digital platforms, big data, machine learning, artificial intelligence and algorithms. Winnie Ching (CCCS) also analyses the advantages and disadvantages of algorithms and she assures that the CCCS continues to improve in the field of algorithms and artificial intelligence, as these are constantly improving, too. However, Stefania Bariatti (Chiomenti) believes that enforcers have unduly neglected vertical competition issues, but that thanks to the growing interest in digital markets, and in particular in the use of algorithms, some illicit practices such as RPM will be assessed more seriously by enforcers.

The digitalisation is also an important topic for the in-house counsels. Thus, Jeannine Bartmann (Allianz) explains that Allianz is driving digital transformation throughout its entire business. According to Sophia Real (Google), the current debate about competition law and digital markets goes to the heart of what competition law is about. She calls for the rules to be adjusted and to be adaptable to changes in society and technology. She considers that the German abuse rules can kick in below the EU level, so that there is an obvious risk of increased fragmentation depending on the specific changes to the existing rules that are ultimately made in Germany and Brussels. Auraellia Wang (Google) adds that the trend seems to be to question the sufficiency of competition law when it comes to digital platforms and to move towards an ex ante model of enforcement, which would be a dramatic shift in approach.

In addition to digitalisation, the authors also often deal with mergers. So Paula Azevedo (CADE) talks about conglomerate mergers and their future treatment by the CADE, and Patty Brink (US DoJ) illustrates how exactly went on the Antitrust Division’s merger review process modernisation since 2018. Fiona Carlin (Baker McKenzie) explains in detail how to navigate a global merger through the multi-jurisdictional minefield and its huge number of strategic and practical considerations. Winnie Ching (CCCS) speaks about the Grab/Uber merger, CCCS’s first investigation against a completed merger that resulted in an infringement decision. Additionally, the case also shows the good cooperation of ASEAN competition regulators. Maria Jaspers (DG COMP) says that the discussion about competition policy and gender awareness, which is expressed, for example, in the fact that women do not benefit as much from concentration as men because the majority of CEOs, shareholders and investors are still men, would be interesting, but she does not see how that number of female managers or board members should be a factor when assessing the competitive impact of a merger.

While Martina Maier (Siemens) believes that economics have too big a place in competition cases, Amelia Fletcher (University of East Anglia) explicates behavioural economics. The understanding of behavioural economics is crucial for understanding how the firms’ behaviour can be anticompetitive. She says that behavioural economics highlights the distinction between how we expect people and firms to behave, and how they actually do behave. Therefore, for Amelia Fletcher behavioural economics has to play a key role in tackling the competition authorities challenges.

The authors also explain specific national issues. So, Paula Azevedo (CADE) calls for a necessary cartel and corruption enforcement that has to be carried out in a concerted manner. Alejandra Palacios (COFECE) thinks that the biggest challenge in Mexican competition enforcement is competition in public procurement processes. Sarah Cardell (CMA) talks about post-Brexit reforms to the UK competition regime, which ultimately aim to deliver real benefits to consumers. Beatriz de Guindos (CNMC) explains the Spanish specificity of unfair competition, by affecting the public interest, constituting a competition law infringement. Silvia D’Alberti (Gattai, Minoli, Agostinelli & Partners) speaks about the new Italian law regarding class actions and says that the most significant innovations are the claimant’s right to join the action after the final judgment and the provision of reward payments to be paid by the losing party to the joint representative of the members and the lawyers who assisted the applicants. As the DCCA is one of the few national competition authorities which have recently tackled excessive pricing as abusive practice in the pharmaceutical sector, Bitten Thorgaard Sørensen (DCCA) explains the CD Pharma case. Describing the development of China’s Anti-Monopoly-Law, Meng Yanbei (Renmin University) states that China has become one of the most important anti-monopoly jurisdictions after the United States and the European Union and that via competition law, China’s economy has shifted from a high-speed growth stage to a stage of quality development. Heather Irvine (Bowmans) discusses the South African Competition Amendment Act and expects that there will be considerable litigation over what the new public interest factors in the Amendment Act mean. This may lead to longer merger reviews and so, foreign investment could be reduced.

Regarding future competition law challenges, Jeannine Bartmann (Allianz) thinks that the GDPR represents great challenges for the firms, such as the deadline for notifying the authorities of data breaches or the interplay with the confidentiality obligation towards whistleblowers. In Martina Maier’s (Siemens) opinion compliance gets always more complex, in particular in fields such as export control and human rights. Emily Smith-Reid (HSBC) adds that the cost and complexity to regulators of designing the European PSD2/open banking regime has been huge. Fiona Carlin (Baker McKenzie) conceives that there will be political pressure for more intervention and rising populism and that popular themes will be big tech/big data, high drug prices, the threat of China, sustainability and environmental issues. Therefore, it will be important for regulators to continue to take evidence-based decisions in a global political climate of increasing protectionism. Karin Lunning (SCA) agrees that the impact that will have climate change on competition policy has to be considered.

However, it is not only the content that is interesting, because the authors also provide very personal insights, for example Cani Fernández (Cuatrecasas) entitles Ida Tarbell as her first antitrust hero and the real mother of antitrust, Patty Brink (US DoJ) expresses the pride she feels by representing American consumers and Rose Webb, as former CEO, describes the growing of the Hong Kong Competition Commission to a fully-fledged competition agency. During her first 18 months in Hong Kong, there was no competition law—the Competition Ordinance started in December 2015. Siún O’Keeffe (ACM) pictures her way to the Dutch competition authority as a non-national and, as a mother of four young children, she speaks about the work-life balance. Meng Yanbei (Renmin University) talks about the work-life balance, that both are equally important, and both should be in a relationship of mutual achievement, knowing that life is a marathon. Paula Azevedo (CADE) speaks openly about the compatibility of success at work and a balanced family life, too. Auraellia Wang (Google) explains how she developed her support system by relying on training in the science of consciousness and how meditation contributes to her life and her work.

An often discussed issue is that of female quotas. While Rose Webb (New South Wales Department of Customer Service) assesses that Australian competition law has a relatively high representation of women, both at the regulator and in private practice, Siún O’Keeffe (ACM) tries to find solutions to the paradoxical situation that there are equal numbers of men and women studying law, but then women have much more difficulty in advancing their careers. Describing Italy as a country where women are left alone to take care of the family business and have very little support from the State and civil society at large, Silvia D’Alberti (Gattai, Minoli, Agostinelli & Partners) states that she is not a fan of quotas, but that she has to admit that quotas have helped to open access to boards. Maria Jaspers (DG COMP) is not a strong believer in mandatory quota systems and Beatriz de Guindos (CNMC) says that she believes in meritocracy and that elements of correction should only be put in place when there is a situation of discrimination. Auraellia Wang (Google) also mentions that it is not possible to get more women into senior positions of influence through fighting with men or the system.

Finally, many of the authors give helpful advice to young female lawyers. While Martina Maier (Siemens) advises to be open-minded to see competition law, a rather mainstream field, as one option among others, Meng Yanbei (Renmin University) advises to discover the inherent charm of competition law, to maintain the habit of lifelong learning, to have a broad vision and to be confident. Siún O’Keeffe (ACM) thinks it is important to be selective in who you work for, and in who works for you, and Rose Webb (New South Wales Department of Customer Service) suggests them to back their own judgment. Emily Smith-Reid (HSBC) encourages to seek out diversity of experience, focus on doing a great job whatever role they are currently in and seek out mentors from an early stage. She adds that all really good in-house lawyers should ask not only “Is it legal?” but also “Is it right?” and in such way build credibility, trust and confidence within their organisation. Stefania Bariatti (Chiomenti) advises to cooperate with men in order to share responsibilities at home and to get more support in pursuing one’s career, to educate sons to respect and treat women as equals, and to strengthen daughters’ self-esteem and self-respect. Paula Azevedo (CADE) believes the main issue women face is in overcoming certain preconceived notions of women’s roles in society and that they should realise that they deserve “a seat at the table” as much as anyone else. Finally, Renata Hesse (Sullivan & Cromwell) states that there is no “right way to do anything” and that young female lawyers should develop whatever combination of skills and practices they see that fits best with their personality and goals. She encourages them to take pleasure and pride in the small successes of life, declaring that success is defined by what makes them feel like they have accomplished something, and it is not measured only by the points they put on the board in their job.

All in all, it is a book full of interesting new approaches to all kinds of hot topics, especially digitalisation, algorithms, consumer protection and competition policy, which impresses with its diversity and its renowned authors. It is not only groundbreaking for all future female actors in competition law, but above all interesting for all those who want to gain a global view of the current status of various national competition laws.

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  • University of Paris I Panthéon-Sorbonne

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Rebekka Schlieper, Women & Antitrust. Voices from the Field – Vol. I, Evelina KURGONAITE (Curation & Foreword), September 2020, Concurrences N° 3-2020, Art. N° 95983, pp. 231-233

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