For competition law practitioners and their clients, the next decade will be one of challenge and change. The internationalisation of competition law is upon us. The global economy, mega-mergers and the spread of antitrust regimes around the world means that the time has come for a new type of practitioner and client service.
Awareness of the fundamentals of all the world's major antitrust regimes will be essential for practitioners. Clients will choose individuals and firms that can deliver a cross-border service that offers international expertise.
Why this development? Alongside the global acceptance of the central role of the market economy and the growth of world trade liberalisation, governments are realising checks and balances are needed if markets are to remain open and contestable. A proliferation of antitrust regimes has grown, giving the overwhelming impression that differences rather than similarities distinguish them.
Yet, with a longer perspective, what emerges is an accelerating harmonisation focused around two models, the US and European Community. The older regimes of the UK, Canada and Germany have been overshadowed and had to adapt.
Thirty years ago, the differentiating factors of the US model – criminalisation, incentives for private actions and large monetary fines – led to friction between the US and those older regimes. The acceptance of the importance of antitrust on a wider basis has reduced those tensions and the two models are now in a process of constructive engagement, with transfers of techniques and concepts. That process has been assisted by international cooperation agreements among antitrust authorities.
The hallmark of the international approach is the emphasis on economic analysis, and the relegation of other issues to a second order. These developments are seeing the breaking down of the walls between the EU and US models, with convergence heavily influenced by the US approach.
Although the fundamentals of the regimes are converging, enforcement is increasingly fragmented. Transactions often involve 20 or more national agencies. Clients are moving to international brand management, to common distribution arrangements and to the globalising of their businesses through mergers, acquisitions, joint ventures and alliances. For an effective client service, practitioners will need to be on top of the convergence trends, and will also need to have knowledge of the practices, approaches and pitfalls of these many national enforcement agencies.
The ability to offer a one-stop, multi-jurisdictional service in a cost-effective manner will be essential. This requires a new approach to recruitment, training, practice organisation, service delivery and outlook. The days of narrowly focused antitrust boffins are gone.