The end of Professor David Gilo’s appointment as the Israeli Antitrust Commissioner gives us a chance to pause and think – what is it about antitrust law that we love so much?
Professor Gilo’s appointment period has proven quite dramatic for the Israeli antitrust and competition law. Israeli competition law was pushed from its sleepy corner, where it was “just another interesting niche,” to the legal and economic forefront. From the “cottage cheese” protest of 2011 to the natural gas monopoly dispute of 2015, antitrust law has taken center stage.
But this is not why we love antitrust law, and this is not why you should be worried.
We love antitrust law because it is a diverse, challenging and dynamic field. The Israeli Antitrust Authority (IAA) has wide reach and different tools at its disposal, allowing it to wave a big stick at its own discretion. The IAA may bring forth criminal charges or impose administrative fines on individuals and organizations; it has the authority to review mergers and other agreements in advance, and may block or permit them, with or without conditions.
We love this dynamic field, it makes life interesting. Today we get to be criminal lawyers and tomorrow we’ll be negotiating like commercial attorneys; we are administrative law experts in the morning and lobbyists by night. We even find ourselves litigating huge class actions.
But that is exactly why you should be worried. The IAA, with its multiple powers and authorities, is a rather formidable entity. In the last few years, it has nearly doubled in size, and has been willing to take on complex cases with cutting-edge theories. And when you’re done with the IAA, in come the civil claims and class actions, reason to worry, indeed.
Let’s not forget, antitrust concerns multiple sectors. Competition law is relevant to every economic activity in the market. Yes – some sectors, such as agriculture and naval and air transport have unique exemptions, but the IAA has methodically been stamping these out one after the other. The statutory exemption for air transport was significantly narrowed in 2007. In 2011 the statutory exemption for naval transport was completely abolished and replaced by a (much narrower) administrative block exemption. In 2014 the statutory exemption for agriculture took a blow. No sector is free.
As for why we love the sector variety, well that’s obvious. As an antitrust and competition lawyer, you must have a true understanding of your client’s business, competitive surrounding, competitors, customers and suppliers. Over the years the diversity of antitrust law has offered us a unique insight into nearly every major industry in Israel — from food to finance, from oil to air transport.
Now why you should be worried, should also be clear – every sector may include your sector. In recent years the IAA imposed monetary sanctions across the board, from huge food companies to kindergarten trade associations. It served criminal charges against bread-makers, tree-cutters and water-meter manufacturers alike. It even indicted a lawyer (and won the case in the Supreme Court). No matter how large or small your business and in what industry you operate – you must make sure your business conforms to antitrust law. They are everywhere.
Last but certainly not least, let’s not overlook the dynamic nature of antitrust law. Since antitrust law stems directly from the field of economics, it evolves as economic research does. As economists reach deeper understandings of market behaviors, legislation and case-law adapt and adopt new concepts. For an antitrust lawyer, there is always something new to learn. New ideas to apply.
But a legal system in constant motion is very challenging for business. Regulation is supposed to be as certain and stable as the ground businessmen step on. When that ground is shaky, everyone may fall. Remaining in the know is a challenge. Falling out of the know is a (criminal) risk.
Are you thoroughly concerned? So – what can you do about all these worries? Well, we can tell you that your best bet is an effective, well-functioning antitrust compliance program. An effective compliance program is tailor-made. It will suit your specific industry and sector. The IAA’s powers are indeed varied, but just like the risks they do not all apply to every organization. An effective compliance program will evaluate and mitigate the specific risks faced by your individual organization. And most importantly – a truly effective compliance program has mechanisms in place ensuring that it is constantly updating itself and keeping your organization on top of the ever-changing regulation.