Daniel Kanter took over as chief antitrust counsel with IATA in 2011 following stints as an associate in leading competition teams in Brussels and Washington, DC. This week, he’s speaking as part of a panel that will dissect the Australian Competition and Consumer Commission (ACCC)’s decision in the Flight Centre case, which challenged much of the conventional wisdom around the legal treatment of principal and agents under Australian competition law. Ahead of the symposium, ALN caught up with Kanter to discuss how he came to be part of IATA and what he sees as the pressing antitrust concerns for aviation in 2018.

Deniel Kanter

Tell me a little about your life before IATA

Though I grew up and went to law school in Sweden, I’ve never actually practised law there – a rarity as law doesn’t tend to travel. Right after I graduated, I moved to Belgium to do an LLM at the University of Leuven, where I studied European and competition law. And my first job was with Squire Sanders & Dempsey (now Squire Patton Boggs) in Brussels.

I moved to Gibson Dunn & Crutcher when it opened an office in Brussels in 2003. It was a small office that worked closely with the firm’s US teams, and I remember being just gobsmacked by how they worked – their drafting skills, how they conducted business – they were just so good at it. And I thought, “How can I get just a little bit better?”

And that prompted you to move to the States?

I decided to go to Georgetown to do a US antitrust LLM, which was a totally different way of schooling than I was used to – a more “Socratic” approach – and I had a great time; it suited me very well. During my time at Georgetown, I was one of the guinea pigs for the International Program at the Federal Trade Commission, which has gone on to become a very successful internship under Randy Tritell’s leadership. And from there I went to White & Case in DC, doing antitrust work alongside Mark Gidley and his team, before transferring back to Brussels for about 15 months, after which I was recruited to IATA.

How much exposure had you had to aviation work at the time?

Not much as a percentage of my work. But I had been involved in the Department of Justice and European Commission investigations that looked into allegations that airlines had conspired to set fuel surcharges for shipments of cargo, in 2006. It became a somewhat legendary case in terms of setting fines and prison sentences, and in a bizarre way, makes my job at IATA a little easier, because the industry is so sensitised to these issues.

What made you want to join IATA?

When you work at a law firm you often work alongside industry organisations, but to my knowledge there are very few that rival the breadth of standard setting activity that IATA is involved in, that are involved in the same type of commercial activity that IATA is involved in, and really set the direction for an entire industry in the way that IATA does.

It also has a fascinating history. The 1946 Bermuda Agreement between the US and the UK, which set the template for the air services agreements that allowed airlines to travel from “Country A” to “Country B” in those early days, had specific mention of IATA setting the rates for North Atlantic routes and being granted US antitrust immunity to do so. Without IATA, international travel could not exist. Of course, through liberalisation that started in the 1970s, the industry transformed itself and that part of IATA’s activities had to change as well.

But IATA’s still involved in so many interesting initiatives: safety standards, environmental issues, baggage, tickets. It really took a lot of research before I took the job to understand what was appealing about it, but I decided that this is a once in a lifetime opportunity and that I should take it. As an antitrust lawyer, I don’t think I can script a more interesting job than the one I currently have. I am very lucky.

What does a typical day look like for you?

My primary client is always IATA. But my secondary clients are the airline members, because, like any trade organisation, one of IATA’s core functions is to get lots of stakeholders together to talk about legitimate issues that affect the industry. This is a classic information exchange scenario, and antitrust is a key compliance measure. It’s often part of my day-to-day to attend meetings with the industry to ensure compliance with the competition laws and that we’re always on the right side of the proverbial red line.

Internally, I also ensure that all IATA employees are trained regularly on competition law. We host big commercial events all over the world, where lots of airlines meet, so we have to have compliance measures in place to avoid any issues. We make sure we’ve reviewed and approved all the presentations ahead of the events and speak to all panellists and speakers ahead of time.

How does your role play into IATA’s overall mission to “set the direction” of the industry as you say?

Competition law’s a part of that mission. We look at certain areas where competition doesn’t work very well – where for example airlines are on the receiving end of anticompetitive conduct — and ask if there’s anything we can do to help make it more of a level playing field, to make the industry more competitive, to lower costs. It’s a very important part of what I do and of the value IATA provides to its members, alongside intervening in particular court cases on behalf of the industry and advocating before competition regulators.

What important cases have you intervened in recently?

We intervened as a third party in ACCC v Flight Centre in Australia, and this is the topic my panel is focusing on at the symposium in Bangkok.

There’s also the American Express anti-steering case in the US Supreme Court, in which we filed an amicus brief in December. This is the first time the US Supreme Court examines the multi-sidedness of markets in the internet age, and has significant implications for consumers and business alike. If the ruling of the Circuit Court stands, I suspect the adverse impact will be substantial. Credit card platforms process trillions of dollars of transactions in the United States annually. More importantly, firms operating in two-sided platforms using the internet, such as Facebook, Amazon, Google, and Airbnb, are increasing in both number and size. The Circuit Court’s decision gives firms in these two-sided platforms the latitude to act anti-competitively on one side of the platform as long as they can point to some secondary benefit on the other side of the platform, whose beneficiary is a different set of consumers/actors.

What about cases you’re not involved in?

I religiously follow antitrust developments globally, aviation and non-aviation specific. An important case for our members that is currently before the Second Circuit involves US Airways (now American Airlines) and the global distribution system Sabre. US Airways won US$15 million in damages in the Federal District Court in 2016, when it was found that Sabre had harmed competition by overcharging on its booking fees, and Sabre’s now appealing against that ruling. It’s a case that deals with how airlines sell tickets via intermediaries and the restrictions imposed by these intermediaries that effectively increase costs for airlines and ultimately consumers. We’re watching that one closely. Similar issues are at the heart of the Lufthansa/Sabre case in Texas.

Outside of specific cases, are there any wider issues of concern for you?

My worry comes from divergence between national authorities when it comes to the application of competition laws worldwide. Twenty five years ago, there were only a handful of competition law jurisdictions. Fast-forward to today, and more than 100 competition authorities are actively enforcing their own antitrust laws. Now, there’s obviously not a global suite of competition laws; the problem is that airlines operate worldwide and need to comply worldwide. So, if an authority in one country imposes rules that are totally inconsistent with the rules of a neighbouring competition authority, that presents an acute problem for an airline operating between those two jurisdictions. Many emerging competition authorities tend to implement a European style competition law. What we’re starting to see is the problem of implementing such legislation, but without the accompanying guidance and case law. There is no magic solution to this and it of course exists in other industries too, but it is more pronounced in aviation than other sectors and it presents bigger issues.

Are you lobbying for change?

Lobbying is a major part of IATA’s role in the industry and that’s equally true when it comes to competition law. Earlier this month, for instance, we provided comments to the Singaporean Competition Commission relating to some guidance material they put out on joint ventures in the aviation sector. I go in and I brief regulators on a number of different issues, as well as describing new IATA standards and explaining why they’re the public’s interest. Antitrust advocacy gives us the opportunity to educate regulators on the consumer benefits of aviation stemming from IATA’s activities.