An Interview with, President of the IBA Interviewed by Co-Chairs of the Antitrust Committee In this interview, discusses his involvement with the IBA and the Antitrust Committee dating back to 1979, sharing the highlights and notable achievements of both and how they have evolved into the organisations we know today. Michael, when and how did you first get involved with the IBA? I first became involved in the IBA in 1979 when I was sent by the then senior partner of my firm to attend the IBA Conference in Zurich in the mistaken belief that my ability in French would be an advantage. The IBA Conference then attracted about 380 lawyers, mainly from the US and Europe. This should be contrasted with our Annual Conference now where we have nearly 6,000 lawyers from over 90 countries around the world. By chance, I met George Seward, 1 who said I should get involved in a committee on the business side of the IBA. So I sought to get involved in the Antitrust Committee. 1 Mr Seward s involvement with the IBA began shortly before 1960 and continued through the decades until his passing in 2012. In recognition of his contribution and dedication to the Association, he was elected Honorary Life President in 1982.
124 Competition Law International Vol 9 No 2 October 2013 What was the Antitrust Committee like by the time you joined the IBA? The Antitrust Committee in 1979 was, appropriately, run rather like a cartel. The same speakers seemed to appear every year and it was almost impossible for a newcomer to have any space. I was then a 28-year-old assistant at Allen & Overy and had recently established our Brussels office to cover EU law. The officers all came from the US, Germany or Canada. There were no working groups and it was all about the Annual Conference. The Committee then did not organise any midyear conference and this remained the case until I and one or two others instituted the Fiesole Conference in 1997. I eventually got spotted organising the committee lunch at the 1988 Buenos Aires Conference. I organised the lunch at a very charming little Argentine BBQ restaurant and collected the money in a bucket during the bus ride. The then Chair said: Who on earth is that with a bucket? The whole conference had been a roller coaster since the UK and Argentina were still technically in a state of war and the entire UK delegation had to have single entry visas. A group of us who went to Uruguay for the day found that we could not get back into Argentina to rejoin the Conference. The following year in Strasbourg I was allowed to be a speaker on UK copyright law and competition rules. I then became Secretary of the Committee in Strasbourg in 1989 and worked my way up to being Chair of the Committee in 1993. So it was a pretty quick rise to the top after years of being denied entry to any of the Committee s programmes. One of the things that I thought at the time was that it should be easier for young newcomers to get the chance to speak on the Committee s programmes. I am particularly happy that young lawyers who want to become active in the IBA are able to do so now. I also thought at the time that the Committee did not do very much only the Annual Conference and that needed to be changed. The Antitrust Committee has today an international dimension, with respect to both officers and members. Can you explain how the Committee has evolved over time in this respect? When I joined, the officers and main members were mainly from the US, UK, Germany, Canada, Belgium, the Netherlands, reflecting really the main jurisdictions at the time. As there was no EU merger control or proactive anti-cartel enforcement, I remember that the sessions were very dominated by the German and US lawyers. Around 1990 onwards, EU competition law became a much more important topic on the programmes and this meant that a wider range of EU nationalities became involved. When countries like Australia and South Africa (after the end of apartheid) joined the Committee, it all began to adopt a more international aspect. Then in the mid-1990s, you had a lot of Latin American countries suddenly becoming much more active in antitrust enforcement. In addition, the new European states from Central and Eastern Europe were rapidly adopting antitrust laws. I was closely involved in the latter, advising countries like
An Interview with, President of the IBA 125 Poland and Hungary on what type of competition law they should adopt paid for by the EU s PHARE programme. Of course, after that we had the absolute explosion of antitrust law in Asia China, Japan, South Korea. This led to the proliferation of divergent merger control laws, which, in turn, led to the movement setting up the International Competition Network (ICN). The IBA played a major role in this. It was at the IBA Conference in Brussels organised jointly between the IBA and the European Commission that Mario Monti and Joel Klein (the US Assistant Attorney-General) made a plea for the injection of greater convergence and consistency into the vastly expanded plethora of antitrust laws. The IBA organised the Ditchley Park Conference in 2001, which brought together the EU, the US, several European member states, Canada, Australia, South Africa and one or two Latin American countries. This led directly to the establishment of the ICN, which held its first conference in Naples. When would you think the Committee reached a degree of maturity inside the IBA? The Committee really grew to maturity at the IBA when we decided that the IBA was about more than just the Annual Conference. After the Berlin Conference in 1996, the Committee Officers decided amongst ourselves that we should have an annual conference of excellence devoted to European competition law that took place in Europe in autumn, as then there was only one and it took place in New York at Fordham University. We had a long debate about where to hold it: Paris, Berlin, and Copenhagen were all considered. It was pouring with rain on a dark Berlin night so someone said couldn t we please have it somewhere warm and sunny. At that moment, I remembered that Claus Dieter Ehlermann held a regular conference at the Istituto Europeo in Fiesole, Florence and suggested that venue. Claus Dieter made the arrangements and the Florence Conference was born in 1997. At the same time, we started to set up small working groups looking at new legislation such as the new EU merger regulation and made submissions to agencies. In order to achieve this, we expanded the number of officers to reflect new jurisdictions with important antitrust laws. I made a great effort as a Legal Practice Division officer to make sure that we had officers from countries such as Brazil, South Africa and Japan on the Committee. This has continued and the Committee now has officers from a large number of jurisdictions. Can you share the most challenging moment from your time as an officer? The worst moment I can remember is when I was Vice-Chair of the Committee at the IBA Hong Kong Conference in 1991 just after the adoption of the new EU merger regulation. The then Director of the Merger Task Force was about to deliver a keynote speech to an assembled audience of about 300, and just after I had introduced him, he collapsed in front of me, overcome by the excitement and the soaring humidity. We carried him out and I raced up and down the conference centre to find a doctor, which
126 Competition Law International Vol 9 No 2 October 2013 I eventually did find. I then came back about 20 minutes later to find the audience still sitting there waiting for the keynote speech. So I got up without any notes or preparation and gave, off the top of my head, a speech about EU merger regulation and how it was operating and what I thought were the key priorities of the Commission. Anyway, it was not an experience I would want to go through again really flying by the wire. Can you share with us the most memorable conference held by the Antitrust Committee. I think the most remarkable conference was the one we held in Brussels to mark ten years of the EU merger regulation, where we assembled Mario Monti together with former commissioners Leon Brittan, Peter Sutherland and Karel van Miert. We also had present most of the heads of the main EU national agencies. Leon Brittan gave a brilliant speech describing the process by which he managed to persuade the EU Member States to adopt the regulation that they had been resisting for many years and which he did with the help of Edith Cresson, the then French prime minister. This was all fascinating material we had never heard before. Mario Monti also gave a major policy speech about the challenges ahead and this was before the rail crash when the Commission lost three major appeals in relation to mergers that it had prohibited. When was it and why did you decide to become involved in the IBA Board? When I first joined the Committee, I realised that EU antitrust was going to be important. The UK had recently joined the EU and I saw the Antitrust Committee as a way to develop a practice on an international level, particularly in regard to potential clients from the US and Asia. And from that I eventually became an officer and climbed to the position of Chair in 1994. After four years of this, it seemed to me to be a good idea to go on and become an officer of the then Section on Business Law. From there, I joined the IBA Council and eventually ran for election as Secretary-General. The rest is history. Every IBA officer, including the President, has to have a home in the IBA and mine has always and will always be the Antitrust Committee, which is one of our finest and highest performing constituent committees. To what extent do you think the Antitrust Committee has contributed to the development of competition policy internationally? Through its submissions to agencies and its conferences, I think the Committee has made a great contribution to the development of competition policy. For example, in the early days of EU Merger control in the 1990s, we put on a large number of special events and seminars to help explain the workings of new regulation and this gave the European Commission a great platform on which to explain its policy and for practitioners to explain to the Commission the early procedural problems that were coming to the fore.
An Interview with, President of the IBA 127 We have also provided an excellent forum for officials of the agencies in the new jurisdictions to explain their policies and the challenges that they were facing. This has been true in conferences we have put on in Brazil, India and Russia, for example. In your view, which are the most notable achievements of the Committee and why? The Committee now has a number of important achievements to its name. I think the most important and lasting achievement was the decision to set up the Florence Conference as a centre of excellence in EU law, and having seen how this has developed and is so widely respected around the world. Its ongoing success is something the Committee should be very proud of. Next to that, I am very proud of the role we played in helping to bring about the creation of the ICN, as I said before. This was recognised recently by Eduardo Perez Motta at the ICN Conference in Warsaw. The Committee also has a large number of other achievements to its credit. In particular there are the major in-depth submissions to antitrust agencies in several jurisdictions. These submissions are prepared by groups of committee members who are geographically diverse and reflect broad international experience from around the world. The Committee has been active on the publishing front as well, and the recent BRICS book is a very good example of that. The Committee has played a major role in India through the two joint missions to the Competition Commission of India (CCI), which we conducted with the ABA and in which we gave to the newly formed CCI the benefit of a lot of accumulated experience from the practitioners point of view in relation to procedures for merger control and anti-cartel enforcement. The mid-year event is also a great achievement, particularly as it has now been held in so many key jurisdictions around the world where the Committee has not previously held conferences, for example, the recent very successful conference in Sydney. On behalf of the Antitrust Committee and those who have benefited from your contributions to the Committee and the IBA, we extend our deepest appreciation and thank you for sharing your insights. My pleasure.