University: University of Bristol
Competition and regulatory work involves a mixture of commercial, public and (for now) EU law. The general competition law prohibitions under EU and domestic law apply to all types of economic activity, and work in this area also involves a range of sector-specific regulation (eg, in the telecoms, energy and financial services sectors). It also includes merger control under EU law and the enterprise Act 2002. The work involves a mix of regulatory and court proceedings, with claims for damages for breaches of competition law taking on a higher profile in recent years. Related areas are State aid and the rules on public sector and utility procurement.
Asked how he became a competition law specialist, Aaron Khan explains that “there wasn’t a masterplan – much like my career more generally. For most of my A levels, I thought I would study computer science at university because I was very interested in technology, but I realised that I didn’t quite have the skills for that, I chose to do a law degree because I thought it would be interesting, not because I thought I would necessarily pursue it as a career.”
It was the right choice – the more he studied, the more he realised that “this is where my interests lie.” Keen to develop his expertise, he completed a bilingual LLM degree in EU law at the College of Europe in Bruges, Belgium. Competition law was one of the main modules, which was Aaron’s introduction to what would become his career: “I found myself completely enthralled, not only by the body of law but also with its close interaction with economics. The analysis of whether certain actions should be permitted or prohibited by competition law is absolutely fascinating.”
After finishing his LLM, Aaron worked as an academic for five years, first at his alma mater in Bristol and then at Cardiff University, where he ultimately discovered what he really wanted to do. “I loved working in academia, and especially teaching law and being in the classroom environment with students, but more and more I found that I wanted to be at the sharp end of cases,” he says. He applied for – and secured – pupillage at Brick Court Chambers before enrolling on the BPTC.
Aaron is mixed race, state-school educated and he is part of the first generation from both sides of his family to go to university, so his background is very different from the barrister stereotype. He emphasises that a key attraction of becoming a barrister is that “it is a meritocratic profession – it is about your ability, not anything else.” For that reason, his advice to aspiring barristers with nontraditional backgrounds is “don’t be deterred – as with choosing any career, the important thing is to pursue something that you enjoy and are good at. If you have a genuine passion, you should go for it.”
One of the beauties of this job is the variety of clients and sectors you are involved with, and it is important to develop a deep understanding of whatever sector you are working in and to be an expert in your client’s business in order to be able to represent them effectively.
Three main types of work
Now a tenant at Brick Court Chambers, Aaron has built a competition law practice across a variety of sectors. Competition law, he explains, covers four key areas: “It regulates anti-competitive agreements, decisions and concerted practices; prohibits the abuse of a dominant position; regulates mergers; and prohibits certain public restrictions of competition, in particular via the rules on State aid.” Within that “academic topography”, competition barristers do three main types of work, the first of which is regulatory: “You can be acting in or advising on an investigation by a regulator into whether a party’s conduct breaches competition law,” explains Aaron, “or acting in the courts to appeal against or defend a regulator’s decision.”
Advisory work is the second category. “We are often approached to advise whether – and to what extent – a certain course of conduct falls within the scope of competition law,” he says. This leads to the third and largest part of Aaron’s work – litigation, where cases “most frequently involve an action whereby one party seeks damages from another, arguing that they are the result of a breach of competition law.”
Regulatory and advisory work are still important parts of his practice – Aaron has acted in investigations involving the UK regulator, the Competition and Markets Authority, and the European Commission, and he frequently produces expert advice – but litigation is the main area. “In many ways these cases are similar to other types of big commercial litigation and you will see the same sorts of issues arising. These might include questions of jurisdiction, applicable law and so on,” he explains. “The area that stands out in competition law litigation is the assessment of damages; one of the key issues in a competition damages claim is determining what the market would have looked like if there had been no breach of competition law, so you spend a lot of time with economists and accountants looking at how to model the impact of a particular course of conduct on the market.”
Variety and advocacy outside court
“One of the beauties of this job is the variety of clients and sectors you are involved with, and it is important to develop a deep understanding of whatever sector you are working in and to be an expert in your client’s business in order to be able to represent them effectively,” Aaron observes. “For example, I have been taken on a tour of a strawberry farm to understand how they are produced and packaged; and for another case I had to familiarise myself with the detail of foreign exchange trading. There are very few jobs where you can learn so much about such a variety of sectors.”
As with commercial work, “the nature of a competition practice is that you are in court much less frequently because cases tend to be long running and you are often building up to big hearings as part of a team of barristers,” Aaron explains. “Another part of our work which is different to other areas of law is that some of our ‘advocacy’ takes place before a regulator rather than in court. For example, we sometimes represent clients in meetings with regulators.”
Impact of Brexit
Considering the outlook for the competition law Bar over the next couple of years, it is still hard to look past the issue of Brexit. “We are watching developments with interest because they are of real importance to the competition law Bar,” says Aaron. “Up until the end of the transition period, competition law remains a mix of EU and UK legislation, in that UK competition law applies to conduct that affects trade within the UK and EU law applies to conduct that affects trade between Member States. Of course EU law will no longer apply in the UK once the transition period ends, but it is important to keep in mind that multinational businesses based in the UK which trade in EU Member States will still be subject to EU law, so it remains a live issue.”
Brexit will also impact the rights of barristers – Aaron knows of “several barristers who have qualified in Ireland in order to be able to continue to appear before the EU courts.”
But despite the geopolitical uncertainty, the competition Bar remains an endlessly interesting and fulfilling area in which to practice. Signing off, Aaron is keen to draw attention to another benefit of a career as a barrister – the opportunity to make a difference through pro bono work: “I take huge satisfaction from all my cases, and I also do some pro bono work which can have incredibly positive outcomes. Recently I represented an individual who had been wrongly deprived of benefits that they were entitled to for a long time and we were able to get that decision overturned on appeal. That made an important difference to that person’s life and to be able to help someone in that way was hugely rewarding. To be able to do that on top of a fascinating and varied ‘day job’ is brilliant.”