Message from the Chair - November 2020

  • November 24, 2020

I hope everyone is keeping well and safe (and sane!) during these difficult and challenging times.

I wanted to provide you with a short update focusing on: 1) a recap of the Competition Law Section’s 2020 Fall Symposium; 2) upcoming Competition Law Section events and programming; and 3) how you can get more involved in Section activities.

Competition Law Section Fall Symposium Recap

This year the Section’s Annual Fall Conference was conducted virtually, in the form of an Online Symposium held October 20-22. The theme of the Online Symposium – aptly designated "Competition Law and Foreign Investment Review in the time of COVID-19" – allowed a roster of 32 international and domestic experts to provide insightful and engaging commentary on the most pressing current issues relevant to our practices.Contributions by current and former public sector officials were particularly valuable including, from Canada, the Competition Bureau (including a keynote address by Commissioner Boswell), Competition Bureau Legal Services, the Public Prosecution Service of Canada, Investment Review Branch, the Chair of the Competition Tribunal. Enforcers from the European Commission, the United States Department of Justice and Federal Trade Commission, Brazil, Germany, and the Netherlands provided an essential international and comparative perspective.

The three virtual networking events – made possible by the contributions and organization of the Young Lawyers Committee, the Canadian Women in Competition Law Network and the Competition Bureau – provided a much needed casual and social atmosphere. At the same time, Section members were able to become better educated, discuss the importance of positivity in the face of adversity and contribute over $4,700 to Government of Canada’s Workplace Charitable Campaign, an annual fundraising activity supported by departments across the government and an especially worthy endeavour in light of the economic circumstances brought about by COVID-19.

The Conference Organizer, Dominic Thérien, and his team of Organizing Committee members deserve our special thanks for the significant amount of effort invested in making the event so robust and enjoyable.

From a substantive perspective, the Fall Symposium covered today’s most pressing issues in competition and foreign investment law, including the impact of the COVID-19 pandemic, enforcement in the digital age and the intersection between competition law and privacy. A few highlights are set out below:

  • Impact of COVID-19 – Current and former senior enforcement officials, together with private sector experts from Canada and internationally, provided valuable assessments of the impact of COVID-19 on competition law and foreign investment enforcement going forward. A common theme during this discussion centered around the likelihood that enforcement agencies will apply enhanced scrutiny to business practices and foreign investments during uncertain economic times, while resisting pressures to stray from traditional antitrust and enforcement principles.
  • Failing Firm Analyses – Representatives from the Bureau’s Mergers Directorate and the Competition Bar engaged in a lively discussion regarding the “failing firm” analyses and the Bureau’s framework for assessing these claims. Although the Bureau and the Bar expect to see a rise in failing (and flailing) firm claims as a result of the COVID-19 pandemic, the Bureau indicated that it will continue to apply a rigorous standard to these claims.
  • Digital Economy Enforcement – Attendees heard from representatives of competition authorities around the world, including the US and EU, regarding their respective jurisdiction’s approach to enforcement in the digital economy, including new regulatory tools designed specially to address issues in the digital space. These initiatives and policies may be indicative of Canada’s trajectory with respect to digital marketplaces in the future.
  • National Security Reviews – Public and private sector representatives discussed the key aspects of the IRB’s April 2020 policy statement in response to the COVID-19 pandemic. This included how IRB will apply enhanced scrutiny to foreign investments involving the supply of critical goods and services and by state-owned enterprises (SOEs); and how the policy statement does not change the definition of SOE under the Investment Canada Act. Investors and their counsel were encouraged to proactively reach out to and share information with IRD, in order to facilitate earlier issue identification and expedite the resolution of the Canadian government’s national security concerns.
  • Sustainability and Canadian Competition Law – Speakers from Western and Eastern Canada joined with international practitioners, academics and enforcers for a cutting-edge discussion on whether and how principles of sustainability are being incorporated into antitrust enforcement. The comparative experiences from countries such as The Netherlands were highlighted as a potential preview for how this important set of issues could unfold in countries such as Canada.

Other topics covered at the Fall Symposium included updates and insights on expedited litigation, competition law and the pharma industry, the rise of domestic cartel enforcement and the intersection between privacy and misleading advertising laws.

Missed out on attending the Fall Symposium in October? On-demand recordings of all ten sessions are available for purchase.

Thank you to each of the more than 200 members that joined us at the Competition Law Fall Online Symposium and for making it a very successful event!

Upcoming Competition Law Section Programming

With the Fall Symposium officially behind us, our focus quickly turns to the rest of the calendar of events. Each of the Section’s 12 committees has enthusiastically developed a robust plan for their activities this year through various brownbag seminars and other events.

A few highlights from the Section’s upcoming programs include:

Want to receive email notifications for upcoming programs? Sign up for any of the Section’s committee listservs to be in the know. Enroll online through the CBA Listserv Enrolment webpage (CBA membership login required). Notices are also posted to the Section webpage and LinkedIn group.

How to Get Involved in Section Activities

The Competition Law Section’s activities would not be possible without the involvement of Section volunteers. In addition to those that serve on the Section Executive and Committees, there are numerous other volunteers that make valuable contributions.

Here are a few additional ways to get or stay involved in the CBA’s Competition Law Section:

  • Offer to help draft advocacy submissions on behalf of the Section, e.g., in response to requests for consultations on draft guidance materials by the Competition Bureau. The Section’s submissions are reviewed closely by the Bureau and are typically posted afterwards.
  • Present an idea for a brownbag or webinar to a Section Committee such as mergers, criminal matters, reviewable matters, or any of our other committees. New ideas are welcome and open for discussion.
  • Consider organizing a virtual social networking event, perhaps in connection with a competition law or foreign investment theme (or not). As in-person gatherings will be limited for the near future, there will no doubt be many colleagues interested in staying connected virtually.
  • Author or co-author an article based on cutting edge work or latest developments, with a view to publication in the Canadian Competition Law Review (CCLR). For timing and potential topics, please reach out to the CCLR editors.

If you are interested in becoming more involved in the Section through these or other means, feel free to reach out to me or any other member of the Section Executive directly. A list of Executive members and Committee leadership, as well as additional information about Section activities, is available on our website.

To Section members, once again, thank you for your participation and engagement in these difficult times. On behalf of the Section Executive, we hope you are staying well and safe and look forward to staying connected through the many Section activities planned for this year.

All the best,

Navin Joneja
Chair, CBA Competition Law Section, 2020-2021

Check out this webinar, Happy Together: Privacy and Competition Law in a Digital Economy (December 10, 12 pm – 1:30 pm ET)