Chillin'Competition

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?

There were many intense moments, like the day the Microsoft judgment came out.  The case had been beautifully and skillfully argued on all sides, and the stakes were high. The President of the Court read out the operative part of the judgment very slowly and deliberately, and the result took some time to appear and sink in.  That evening, we had a family dinner for our son’s 21^st birthday.  All in all, a truly memorable day.

Your role model (if any) in the competition community? And outside of it?

In the competition community, Mario Siragusa is my guiding star.  Brilliantly analytical, the most persuasive advocate I have ever heard, and an absolutely wonderful and positive colleague.

Outside the competition community:  my fellow countryman Desiderius Erasmus (the epitome of the reasonable man, thoughtful, resilient, and maintaining humour in adversity), Nelson Mandela (there is hope for the world if people who went through what he experienced can redeem their jailers).

What do you like the least about your job?

(1) Admin, but fortunately I have very understanding colleagues who are kind enough to let me off the hook and mostly allow me to do what I like best – the law;

(2) The veritable tsunami of emails every day;

(3) Unethical conduct.  Rare, but it happens.  For example, in a case more than a decade ago, it came to my attention that opposing counsel had somehow laid his hands on a memorandum containing privileged legal advice to my client.  We still don’t know how he got them.  Instead of sending them back to me or destroying them unread, he passed them on to his client with a note “look what a pixy put on my desk”.  That was a wake-up call.

What do you like the most about your job?

Antitrust law is at the cross-roads of law, economics, policy and facts, and that combination is fascinating.   The IT area is in addition wonderfully cutting edge.  IT cases raise novel questions that require creative thinking.

Also, I am incredibly lucky to have landed with my firm, because of its collegial and flexible structure.  I have colleagues whom I truly admire, such as Jan Meyers (who understands competition policy and law better than many antitrust lawyers), Robbert Snelders and Thomas Graf (the upcoming generation of brilliant young lawyers).

What you like the most about economics in competition law?

The intellectual challenge of debating with people like Hal Varian.  Hal is am amazingly versatile and clear economist, whose lucid explanations and insights are a pleasure for the mind.  Thoughtful economic analysis is crucial to avoid “the law is an ass” outcomes.

What you like the least about economics in competition law?

The false sense of certainty and precision associated with massive econometric analyses.

What career/personal achievement are you most proud of?

Not easy to pick, but probably the various Microsoft cases.  They combined the fun of fencing and strategy.  The greatest personal achievement is not mine, but that of my long-suffering wife Erika, who has put up with me and my work, and despite being an artist is willing to feign interest in stories on patent wars and competition law.

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

I would have been an archeologist, or studied Jungian psychology (the human mind, spirit and soul are intriguing).

Besides being a “competition geek” (sorry for this one, but we all are), what are your hobbies?

I love tall ship sailing.  Nothing beats the beauty of balance of water and wind, or a nightwatch on the Drake Passage (the photo above is taken on a tall ship appropriately called “Europa” on the way to Antarctica).  I have always enjoyed history and painting (especially Dutch and English maritime art).  Erika and I love long-distance walking.  I sang for many years in a small church choir in the lovely small Episcopal/Anglican parish of All Saints Waterloo, and have joined a choir in London.  Music is the best way to forget any worries.

Favorite movies?

To Kill a Mockingbird;  the Shawshank Redemption;  Il Postino;  Das Leben der Anderen;  Master and Commander.

Favorite music style in general?

I have old-fashioned and outdated tastes, including the ethereal beauty of English church music and English polyphony — Gibbons, Tallis, Byrd, Purcell (Dido’s Lament!), all the way to John Tavener (Song for Athene).  They can play “Erbame Dich” from Bach’s St. Matthew’s Passion at my funeral, at the risk of seeing me wake up and lift the lid to listen.  And I still remember first hearing Frederica von Stade singing Mahler’s “Aus des Knaben Wunderhorn”.  I was mesmerized.

Your favorite motto?

“Learn as if you will live forever;  live as if you will die tomorrow”.  I will spare you the Latin.

Websites that you visit the most (besides Chillin’Competition)?

http://truthonthemarket.com/;

http://www.freakonomics.com/blog/;

http://www.ted.com/talks;

Our daughter’s blogs (she will kill me if I published the link).

And a certain social site that will remain unnamed, and which I cannot leave because of network effects and their stubborn refusal to let me export my friends’ names.  Contrary to what they think, they don’t own me.

A piece of advice for junior competition professionals?

Do what you love;  never accept anything as true or correct until you have thoroughly analysed it;  keep common sense and good humour;  be a good colleague and a fair adversary.