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Relaxing whilst doing Competition Law is not an Oxymoron

Archive for March 23rd, 2012

The Friday Slot (7)- Maurits Dolmans

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This seventh edition of The Friday Slot features an interview with Maurits Dolmans (Cleary Gottlieb). Most of us are aware of his tremendous reputation as a leading antitrust lawyer, but his answers to our questionnaire will reveal facets of his personality and of his life that, until now, remained mostly unknown. It’s a privilege for us to publish Maurits’ bright and most interesting answers. Enjoy!

“Oscar” of the best competition law book?  And of the best non-competition law book?

I do not read competition law books;  I just use them as reference.  A truly memorable “legal” book is Natural Justice by Ken Binmore, with fascinating game theory showing how, for all our competitive spirit, justice and fairness are innate in the human existence – a comforting thought in a turbulent world.

My non-legal favourites are probably Robertson Davies’ Deptford trilogy (The Manticore) and Cornish trilogy (What’s Bred in the Bone).  I re-read these every once in a while – the sign of a great novel.  Recent great reads include The Elegance of the Hedgehog, Robert Merle’s Fortune de France, and Het Woud der Verwachting (a magnificent historical novel by Hella Haasse on the life of Charles d’Orleans).  From more innocent days, I loved reading The Education of Little Tree to our children (writer was a horrible man, but it’s a lovely little book).

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Best non-case law are the Horizontal Guidelines. Undisputably the best judicial decision is KME v. Commission.  The detailed and intensive review required in merger cases after Tetra Laval  now also applies also to cartel cases.  It is already having effect:   In the hearing on the appeal for Masco in the bathroom fittings and fixtures case in February, the Commission explicitly agreed that the General Court should exercise a complete judicial review over the facts.

The worst is Pfleiderer v. Bundeskartellamt. Leniency statements should not be disclosed. The Court did not distinguish self-incriminating leniency applications from pre-existing documents. That is a mistake and could interfere with public policy to encourage revealing and closing down cartels.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

  1.  The Commission should recognize privilege for in-house counsel who are full members of the Bar.  Even after AKZO, the Commission has the discretion to do so.  It is even more wrong for the Commission to reserve the right to seek access to legal advice from outside counsel who are members of a non-EU bar.  It is a fundamental right of every client to seek legal counsel in confidence from a lawyer of his/her choice.
  2. To avoid confirmation bias, the DG Comp team that investigates a case and writes an SO should not be the one to make and write the final decision.  The decision should be adopted (or recommended to the College for adoption) by a separate panel chaired by the Commissioner, which should independently review SO and written pleadings and attend oral hearings.  Right now, decisions are adopted by a College of Commissioners none of whom have read the pleadings or attended the oral hearing, based on internal notes written by the team than write the SO, not accessible to the defendant.  I have great respect for the integrity of EC officials, but this process is institutionally unsound.
  3. The “me-too” spirit of international merger control has led to a glut of unnecessary merger laws requiring parallel notifications.  This is a monumental waste of time and resources, combined with a risk (already materializing) that merger control is used by “new authorities” to give advantages to national industries.  Some kind of comity rules should be set out to allow the, say, three jurisdictions most affected to review a case, with others declining or focusing on local product markets.

Average working time/week?

Too long.  Fortunately I love what I do and have an understanding wife, our children have grown up, and the firm has a generous sabbatical and vacation policy.

Why do you work in competition law? How did you first get into it?

It’s intellectually satisfying and relevant.  I have always believed in the European ideal.  Integration of national economies should prevent re-emergence of the old enmities that we have not seen for 67 years, and hope never to see again.

Most interesting, intense or funny moment of your career?

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Written by Alfonso Lamadrid

23 March 2012 at 11:35 am

Posted in The Friday Slot