Competition law must “get real, get simple, get credible” according to one of the newly elected chairmen of the Competition Appeal Tribunal.
Former Competition Commission chairman and Cleary Gottlieb Steen & Hamilton senior consultant Peter Freeman QC said the conundrum for competition lawyers is how to make sense of the complex law and practically apply the economics.
Freeman said he is looking forward to seeing competition law applied in an “adversarial system” through the specialist court, which he believes is the “envy” of other countries.
“Competition is all about economic analysis, but that can very rapidly become terribly complicated,” he said.
“Generally, competition law faces a real challenge to keep its credibility. A lot of people don’t understand it or think it’s not relevant to their business. It’s in danger of only talking to itself.
“It needs to get real, get simple and get credible.”
Freeman said the public needs to see the system working, that cases “starting at one end need to come out of the other”.
He added that the CAT has a relatively quick turnaround compared to general courts, with cases taking on average six months from start to finish.
“I do think that as a specialist tribunal, the CAT plays a very important role and its 10 years of expertise is priceless,” he added.
Freeman said his “fantastic, exciting” experience with Cleary’s anti-trust team over the past 12 months has given him credibility for the CAT role, which he believes is the first example of a solicitor being appointed as a chairman (9 January 2012).
Freeman expects damages assessments where there has been an infringement decision to be prominent in his caseload over the next 12 months, with more settlements to avoid unnecessary litigation.
He said: “The other big trend is the high-tech IT market explosion with big companies such as Google, Microsoft and Intel involved. This is characterised by huge anti-trust disputes for market advantage and the competition system being used for that. It’s quite interesting to see the similarities to the pharmaceutical sector a few years ago.
“I believe people will find it has limited value – technology is advancing very fast and by the time a case reaches a conclusion, it could have moved on. The authorities need to be wary of being used as part of a patent war for companies to achieve short term advantages.”
The Competition Commission and the OFT will merge to become the Competition and Markets Authority in 2014 as the Government looks to improve the competition regime with a super-regulatory body that will crack down on cartels (15 March 2012). Freeman believes this will pose challenges for the body’s chief executive designate Alex Chisholm.
“The new system is going to take another two years to bed down and a lot can happen in that time. It’s a big ask to knock two very different organisations together into a single entity and not lose anything along the way.”