Best Lawyers® — 21/06/2017 at 11:00

A Conversation with Jacques-Philippe Gunther of Willkie Farr & Gallagher, France 2018 “Law Firm of the Year” / Antitrust Law

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Best Lawyers: Before we get started, I would like to congratulate you on being named the Paris Competition / Antitrust Law “Lawyer of the Year” this year, and on the firm being named “Law Firm of the Year” in the same area of practice. Lots of things to celebrate for the firm and also for yourself, so congratulations. 

Jacques-Philippe Gunther: We are very happy. Frankly, this is one of the very few awards that is really important to us. It’s now our sixth year included in The Best Lawyers in France and having read carefully the previous rankings, a lot of professionals pay a lot of respect to this publication.

BL: Would you put into your own words a little bit about what you think your [firm’s] accomplishments were in the last year in the areas of antitrust and competition?

JPG: Absolutely. I think what we have accomplished last year—maybe as a result of luck, or the story of our clients— is a very good mix of issues on antitrust. We usually speak about merger control, antitrust, and state aid. And as a result of what we have achieved, we have been very active on these three fronts with highly visible cases. We believe that we have a real differentiator compared to our competitors as we are seen on the market as a multi-functional antitrust platform able to deal with phase one and phase two, in highly complex cases both in Paris and Brussels. We are seen as being in a position to fight strongly in competition cases in both jurisdictions on positions of state, which is not very often the case in Paris, or with other firms. We are perceived by the regulators as trusted advisers for a number of procedures which are now done through amicable procedures, meaning remedies, or what we call in France “transactions.” Of all of this, alternative dispute resolution is now a reality in the antitrust world and it is extremely familiar to us, not only because we are recognized experts, but also because we have a sort of modesty, non-arrogance, a good knowledge of the formal procedures, and we are seen as reliable advisers in these types of cases. We are not fighting for fighting’s sake. We’ve been told by our clients that when you have a case that is extremely complex, you might not exclude in the end that you would go through a remedy or a transaction and that is probably the best option.

BL: That makes a lot of sense. It sounds like you’re able to be both extremely client-focused but also focused on the regulatory side, so you’re friends to all.

JPG: Yes, we are moved by business constraints from our clients, and we don’t want to spend years and years unless this is helpful for the business, but we want to be pragmatic, and if we need to fight, we will fight until the very last second. If we get the feeling that the best option is not fighting but negotiating and that that’s the best option for our client, then we are suited to do this because we have gained the regulators trust. 

BL: You’ve spoken already about many of the qualities that you think [Willkie Farr] has that makes it such a major player in this arena. Is there anything else you would like to add? You mentioned that the firm has great humility, non-arrogance. What else?

JPG: I have one more quality to add―which is I believe the most important aspect―and that is the team, the quality of the team.

We have an extremely stable team. The five oldest members of my team started with me as trainees and who have now been working with me for over fifteen years. The team is very stable, with promising, young talents who know our clients. They have very strong relationships with the clients.  They have friends working as clients now. It’s not a one-man show; it’s clearly a team. We are also organized as a single team between Brussels and Paris, and whether it’s a French case or a case before the Commission, the team works across the two offices. Again, I believe that pragmatism and I would add a high degree of modesty and business-orientation are the three pillars of the team.

BL: It’s very reflective of the quality of the firm as a whole to have such high retention rates and also to have such deep experience in your team. It’s truly commendable. For you personally, as “Lawyer of the Year,” you’ve been in the field for more than thirty years. What brought you into law and to the firm?

JPG: My personal background is the following: I started thirty years ago as a young associate at Gide Loyrette Nouel, a French firm, where I spent eleven years, five of which were spent in Brussels. I became a partner. Then, I was contacted by Freshfields to set up their antitrust practice in Paris in 1999. In 2006, Willkie Farr contacted me and offered me the opportunity to set up the practice in Europe.  We set up the practice in Brussels, in Germany, and then more recently in the UK. Today, in addition to our expertise on the French market, we have also developed the joint expertise which is extremely helpful for French clients in one particular area, which is litigation after condemnation for anticompetitive behaviors, what we call private enforcement actions. In Europe, you have the choice, and you can select almost each and every jurisdiction that you may wish. I decided to set up a team covering the three main countries, meaning France, the UK, and Germany for these specific type of deals. 

BL: What do you think is the biggest antitrust competition issue facing France or Europe as a whole? Is there a single issue or is there a nexus of issues? We’re in a particularly interesting moment in European antitrust. 

JPG: In my view, generally speaking, it’s the opposition between IP and antitrust, meaning to what extent IP (which usually creates a monopoly by virtue of intellectual property or patents) can weave together with competition, which is just the opposite. This has been a hot subject for the last five years, and it will certainly go on for the next few years. Now, the hottest subject today is how algorithms are going to influence the way that companies set up their pricing policies in the future and whether or not by using the same algorithm you’re going to see on the market similar prices and similar commercial offers. If you use the same algorithm in the same market with three or four players, you could as a result have extremely close offers; the technology could impact the independence of competitors in the market. That’s number one, and number two, which is not a hot topic in terms of competition but is a hot topic in terms of how technology will influence the way we deal with competition issues, and that is artificial intelligence. 

BL: Can you speak a little more about that? 

JPG: Yes. In certain areas like M&A, or big compliance investigations, criminal investigations, when you are dealing with document reviews, machines can review, millions of documents, extremely quickly, extremely cheap. The question is how the machine is going to interact with the way we are dealing with antitrust issues. I’m working very intensely on this issue with some of my partners to see how we can pass on to our clients the gain in terms of productivity and see how for instance we can develop internal capacity to make better assessments on the potentiality of remedies in a transaction or try to anticipate the success of a potential claim before it goes to court, as you can see we have  a lot more work on this subject. We are going to invest money in that. This is certainly another subject that will differentiate us from our competitors. We don’t want to compete with machines. We want to use machines to train our people to use machines. That’s probably one of the biggest issues that we are going to face in the future.

BL: It sounds like it’s an issue that is not necessarily limited to your area of practice; the question of AI is a pervasive one in many aspects of business and is going to change everything. It seems smart for you to be proactive in addressing it and also passing on the results to clients.

JPG: Yes, in the end, it’s not only a question of efficiency, it’s also a question of price and we just cannot afford not using the technology, so we need to invest in the technology to work more quickly, to do a better job.

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