Competition & EU law

Competition & EU law

Paul Gilbert

Cleary Gottlieb Steen & Hamilton LLP

University: University of Oxford
Degree: Classics

Typically, competition and regulatory work includes merger control under the Enterprise Act 2002 and the EU Merger Regulation, regulatory and court proceedings under the Competition Act 1998 and EU legislation, issues arising from sector-specific regulation, state aid, public sector and utility procurement issues. There has been significant reform of both UK and EU competition law and practice in recent years, and further proposals are being considered. An interesting recent development in the area is the reform of the cartel offence giving rise to criminal liability for individuals. Private competition law actions are a particular area to watch, with both the UK and EU authorities keen to encourage such suits, and where the Consumer Rights Act introduces an “opt-out” class action regime to the United Kingdom.

Although Paul Gilbert enjoyed his time a budding classicist at university, he finished higher education ready for something different. Talking to his peers – among them law students and young lawyers – about what to do next sparked an interest in law as a career destination. “I learned what my contemporaries were doing in the field, and the work and collegiate culture sounded ideal, so I did some more research into the legal profession,” he explains. “I considered all the options, but it quickly became apparent that there was never much debate between the solicitors’ and barristers’ professions in my mind. I enjoy the buzz of working in a team within an office environment, so I decided to pursue a career as a solicitor over what appeared to be the more solitary life of a barrister.”

Paul went on to train at magic circle firm Slaughter and May. “My training contract was a hugely valuable experience, for three reasons,” he recalls. “First, I experienced five very different areas of law, as I was able to split one of my seats in two; and second, all my supervisors were excellent. I think the quality of supervisor at any law firm can vary and I was very lucky with mine. Finally, I benefited greatly from having direct client contact almost from day one, which I know is not always the case for trainees at some firms.”

Industry expertise

After qualifying and spending several years at Slaughters, Paul worked at the Office of Fair Trading – today part of the Competition and Markets Authority – where he gained extensive experience of UK competition law. This insight means that, as counsel at US-headquartered firm Cleary Gottlieb Steen & Hamilton LLP, Paul is now a key asset to the firm and its clients.  “My role as a competition lawyer covers both UK and EU competition law,” he explains. “I work on a wide range of matters and cases, including merger work, cartel investigations, abuse of dominance cases and competition litigation. The variety is one of the main attractions of the job.”                                               

Spending time with clients in order to understand their businesses is a key aspect of the role. “As competition lawyers, it is our job to get under the skin of a commercial enterprise, which we then present to competition authorities, courts and others as convincingly and persuasively as we can,” explains Paul. “Essentially, depending on the case, we are arguing either that something will not have an adverse effect on the economies within a particular market or that it will.”

Those arguments are largely conducted though written and oral advocacy. “I spend a lot of time preparing papers to submit to competition authorities such as the European Commission, advocating why certain practices or transactions should be permitted or, sometimes, not permitted,” Paul explains. The stakes are high – and in some cases can break new legal ground. Paul highlights the following example: “One of the most satisfying and enjoyable cases that I have ever done was the Metlac case, which we won for a great client and which also enabled us to be quite innovative in the way that we applied the law. The case concerned a family-owned Italian company which was subjected to a hostile takeover by AkzoNobel, a very large Dutch conglomerate; we were able to use the UK antitrust process to block that hostile takeover. It was novel because it was the first time that UK antitrust law had been the sole legislation preventing a hostile takeover, and also because it was the first time that UK antitrust law had been used to block a merger between two foreign companies, with the Italian company not having a permanent base in this country. The case went to the Court of Appeal and there was an application to the Supreme Court, but ultimately we were successful and set new precedents in the process.”

“What trainees find when they arrive for their competition seats, in contrast to others, is that in competition law we often don’t have right and wrong answers” 

Always something different

But although success is sweet, Paul mostly looks forward, rather than backward – there is always something new to focus on. “Whenever we begin a case with a new client, there is always a very steep learning curve, which is part of what keeps us fresh,” he says. “The key thing about practising competition law, which most people don’t realise, is the need to constantly jump from industry to industry – one day you could be dealing with banking regulation; another with pharmaceuticals; and another with a tech company, such as Google. For me, the most enjoyable aspect of the job is gaining a deep understanding of businesses and using that knowledge to prepare a case in the most persuasive way possible to help the client achieve its goals.”

The cross-jurisdictional nature of competition law means that the Brexit debate has been watched by Paul and his colleagues with professional, as well personal interest. However, Paul is philosophical about the outcome. “Like many of my colleagues, I was of the view that we should stay in the European Union. But with Brexit, there will only be more competition law to do. At the moment, a lot of cases that are dealt with in Brussels go through a one-stop shop – there aren’t simultaneous UK investigations because the UK parts of the case are reviewed by the European Commission. Brexit is likely to mean that some cases will need to be looked at in the United Kingdom as well as the European Union, and there may be certain areas of the law where the United Kingdom could decide to take a slightly different approach from Brussels. This is unlikely to have an adverse effect on competition lawyers professionally, as competition work will increase, not decrease, as a result of Brexit.”

Another issue surrounding competition law currently is just as existential as Brexit. “There is a constant policy debate about how interventionist the competition authorities and competition law should be,” explains Paul. “There is a feeling across some sectors that competition law is becoming quite interventionist – more so than the terms of the broad economic regulation that it was originally intended to be – so it is here that we could see things changing in the foreseeable future.”

Embrace ambiguity

If a career as a competition lawyer appeals, Paul has this to share: “What trainees find when they arrive for their competition seats, in contrast to others, is that in competition law we often don’t have right and wrong answers. This is not to say that all other areas of law are black and white, but generally there is a bit more clarity in terms of what is the right approach. Anyone considering a career as a competition lawyer needs to be comfortable with ambiguity and be prepared to express their own informed opinions. There is also a real onus on competition lawyers to get up to speed with their clients’ businesses, perhaps more quickly than in other areas of law.”

Paul also has some salient advice that all budding lawyers would do well to take on board: “It is so important for lawyers to take charge of their own careers. Particularly for trainees and young lawyers joining big firms, there is the temptation to just stay on the conveyor belt; but I would advise anyone thinking of joining the legal profession to think carefully about what they want to do and not be afraid to be proactive in pursuing it.”

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