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Fordham’s bid for international antitrust thought leadership

 |  August 30, 2017

Fordham University began one of the first globally-minded competition law and policy conferences in the world 43 years ago. In this interview with Skadden Antitrust and Competition partner, and Fordham Competition Law Institute Director, James Keyte, CPI explores how Fordham is reinventing itself to compete in what’s become a packed field.

.       Please give us a little background on Fordham’s Competition Law Institute and the Annual Conference on International Law and Policy. When did it start? What triggered this initiative?

It was started all the way back in 1974 by Barry Hawk, who was a professor of antitrust at Fordham Law.  Even back then, Barry was well aware of the complexities involved with different antitrust and competition systems among different countries—he was particularly interested in the development of EU competition law and its relation to U.S. antitrust law and policy.  Barry’s goal was to start an international conference that addressed cutting edge policy and practical issues facing enforcers and practitioners.  You’ll have to remember that this is long before email or the Internet, and so the Fordham Conference became an important and unique meeting place for enforcers, academics and practitioners around the world to exchange ideas and even make policy announcements.  Barry attracted so many top European speakers in the antitrust field that it was often said that the best EC competition law conference was at Fordham!


  1. The Conference foreshadowed the globalization of competition law and the creation of a panoply of local regulators worldwide (as well as the International Competition Network). What are relevant takeaways from this unique perspective?


What it highlights is that, notwithstanding the efforts of a variety of constituents, the desire for a consistent global view and application of antitrust and competition law remains an elusive, but fundamental, objective.  At the same time, however, convergence isn’t necessarily always a good thing, and in fact what we continue to see is that different jurisdictions have unique cultural, philosophical and political influences that can shape antitrust law and enforcement, which may lead to intentional divergence.


The different organizations that you reference (I should point out, by the way, that the ICN was officially launched at the Fordham Conference in 2001) continue to focus on the current and future path of antitrust law and principles to try to benefit from the competition of ideas across systems and jurisdictions, and to explore where convergence continues to be a worthwhile and important objective.  No one doubts, for example, that multijurisdictional companies would prefer not to face different liability and remedial exposure for the same behavior in different jurisdictions.  Likewise, companies would prefer to have merger processes, treatment of IP as it relates to antitrust, etc., be consistent and predictable across the globe.  These enforcement and other antitrust organizations continue to address these important objectives, including the Fordham Conference in its 44th year.


  1. Nowadays international competition law and economics conferences abound. Apart from the obvious crowding of the field, what issues define the new ‘competitive environment’ for FCLI? What is FCLI doing in response to this, to continue to offer incisive thought leadership?


It is very interesting.  I joked with Barry Hawk that for close to three decades, he was a “lethargic monopolist” facing little competition from other conferences.  But now we see conferences everywhere we turn, some of which are specialized and almost all of which have excellent programs, speakers and track records (including, most notably, the ABA, which has become a major international meeting place).  But, importantly, Barry Hawk started innovating over a decade ago when he formed the Heads of Authority Workshop, which offers a private meeting place for heads of authority from around the world to discuss policy and practical issues in their various jurisdictions—this year, we have nearly twenty-five participants from jurisdictions on five different continents.


But as any good antitrust lawyer or economist would observe, innovation and differentiation often are the keys to success in a competitive environment, and so since I took over as director of the Institute three years ago, we’ve continually innovated.  For example, we’ve added programs such as the Economics Workshop (focused on a variety of topical economic issues and targeting younger lawyers), the In-House Counsel Roundtable (featuring discussion among in-house practitioners from major corporations) and the Global Practitioners Workshop (a half-day program featuring panels on practical issues commonly faced by practitioners).  We’ve also innovated with our conference programs—for example, last year the conference featured a heavy focus on China and was one of the few U.S. antitrust conferences to draw the attendance of three senior officials from all three Chinese enforcement agencies.  Finally, we have focused on having diverse speakers and panelists, including, where possible, young lawyers and economists who are the future leaders in antitrust enforcement, practice and academics.


  1. How did you come to lead the FCLI and how do you see your role in the future?

It’s a funny story.  I worked with Barry Hawk for a number of years at Skadden and jointly wrote several articles with him.  He then asked me if I wanted to co-teach an antitrust seminar at Fordham, which I did for several years before taking it over myself.  I have served on Fordham Law School’s adjunct faculty since 2010.  And then a few years ago, he asked me to start participating in FCLI panels, and eventually broached the subject of potentially taking over as director “when I retire.”  I thought this would be a long way off, but lo and behold, he asked me the following year to take the reins, which I happily agreed to do—and I’ve really enjoyed the experience.  We’ve had excellent support from Fordham and Skadden, and last year we also created an advisory board of practitioners, enforcers and academics, which has been extremely helpful and productive.  This is now my third year as FCLI director and I plan to remain director of the conference for the foreseeable future.



  1. Going forward, how do you see the ecosystem in global competition thought leadership and advocacy evolving with ICN, the OECD, think tanks and universities, the EU and the US, etc.? Will different players have different roles?


I think these different players certainly will have different roles.  One of the biggest challenges with different antitrust judicial and enforcement systems is to keep an open and transparent dialogue among agencies, enforcers, courts, practitioners and academics, which presumably will lead to convergence on antitrust principles, where useful, and informed divergence.  Equally important, the combination of all of these organizations—as long as they continue to interact with one another—should lead to more immediate practical solutions to problems that face practitioners and enforcers.  This can range from merger processes, issues concerning multijurisdictional discovery and privilege and the application of guidelines to various forms of conduct—ranging from unilateral conduct, joint ventures, collaborations and, of course, criminal investigations and leniency.  At Fordham, we continue to strive to be on the cutting edge of these issues and to interact with all of these organizations, always looking for the latest developments, both academic and practical.  We hope that Fordham will continue to thrive and grow into the future.  And, of course, it helps to be at Lincoln Center in the heart of New York City.


         6. Grossly unfair question, but what do you think are the two or three key issues that need to be resolved for competition law and policy to be effective and efficient worldwide?


I think one of the key issues is process and “perceived fairness.”  Risk assessment and predictability comes in large part from understanding the process one must go through in any particular jurisdiction, whether it involves public enforcement, private enforcement, investigations or judicial remedies.  So I think the key is to continue to strive to achieve transparency in those processes across jurisdictions and continue the dialogue among jurisdictions.  This will allow management of practitioner and enforcer expectations.  In addition, there continues to be incredible difficulty in finding some consistent definition and application in so-called “monopoly or dominance law” across jurisdictions, which we see over and over again.  This would include issues related to e-commerce, platform competition and intellectual property.  It seems to me this is an area that is in great need of consistency across legal and economic principles, especially given the implications for practitioners and multinational companies.

Finally, an important evolving area is remedies—in particular, interim remedies.  Currently, there is a great deal of divergence on this subject and it has major implications for business, as well as enforcement policy.