Broader Vision
When Ukraine is criticized for the absence of ground-breaking reforms, competition law is probably one of the most rapidly changing areas with certainty of long anticipated changes. The new rules of the game affect the speed and quality of business decisions, short and long-term strategies, scope of legal work and also help to reshape the subsequent market as such.
We decided to learn about a broader vision on these issues from both private and public perspectives in our conversation with Antonina Yaholnyk, founding partner of competition law boutique CLACIS.
UJBL. You have been among the top legal practitioners in competition law for many years. You were also part of a big law firm. What was the reason for establishing your own competition boutique?
Antonina Yaholnyk: Indeed, I had been part of a global law firm, Baker & McKenzie, for almost 10 years and became one of the youngest if not the youngest partner there in the region. After I left Baker & McKenzie I retained my top legal positions in both local and international professional rankings, but already in my own independent practice.
The professional experience within the large firm gave me a lot in life! Global businesses have very broad vision and if you like a multidimensional perspective in work this is the place. At the same time, at some point of your professional career you ask yourself the question of what you are worth yourself without the big machinery supporting you on a daily basis. Very few people have the courage to step outside of a big law firm and try this on their own. This is very challenging and is, in fact, an unsheltered and turbulent professional life. However, those who have taken this step are people who deserve special recognition at the very least for their courage to challenge themselves! Therefore, I decided to challenge myself professionally and organize CLACIS — my own competition law firm that operates in Ukraine, Russia and Kazakhstan.
I cannot say that since I left a large law firm every day has been like a dream come true. You become less comfortable as a professional in a good sense and understand real business life. You also have to believe in yourself and encourage people around you. This is not an easy task, especially considering the difficult market conditions we are living in. But this is our time and we have to live to its utmost potential. I think that every senior lawyer at some point of time should try to work in his or her own business. It is an awesome feeling when you come to work to your very own place and understand that everything depends only on you! It is hard to do it but it is also very inspiring.
UJBL. We know that in 2014 you were put forward for the position of head of the Ukrainian competition authority. Why didn’t you move into public service?
A. Y.: This has been a very interesting experience in my life too. To respond briefly to this question, I think it is not yet the time for my initiatives within the authority.
Also this experience gave me better understanding of what public service is. I always respected people who work in the public sector since thanks to my practice I intersect with them on a daily basis, but did not realize how much work they do until I got to the election process myself. There is a lot that deserves criticism in the public sector as it was, but it is also worth noting that not every professional from the private sector can work efficiently in the public sector. The working environment, the measurement on successfully achieved results are all different in the public sector than in the private sector. The initiatives that seem to us, as private professionals as reasonable, may work entirely differently in the public sector. A specialist in the public sector is a professional skill too, no less than a professional lawyer in the private sector. To keep a balance in the authority, where decisions are taken collegially, is actually a rare skill. I think that the best way to move properly forward is via a combination of public and private sector professionals. Those who will combine this expertise will achieve great reforms!
UJBL. The recent long-expected reforms of Ukrainian competition legislation have been launched. How do you evaluate the changes to legislation adopted recently? What steps should follow soon, and what consequences might they have for business and legal counsels?
A. Y.: The first steps in reform have been taken. The AMCU adopted new merger control regime, new methodology for calculation of fines, some changes to the procedure on review of cases, etc. I welcome any initiatives and think that this is a good start. Also, we shall not expect too much in a very short period of time, as a lot still has to be done.
Also, the best reforms are usually seen not in the new law that is adopted, but as it is applied in practice, simple things like accessibility of the authority on a daily basis, openness of proceedings, etc. There is still a lot of work that needs to be done in this regard. In order to check the efficiency of reforms some practical things shall be done. For instance, in a law firm we ordinarily make a check — we call our own law firm and act as if we are a prospective client and try to evaluate how easy or difficult it is for a real prospective client to navigate in our firm. I think the authority should do the same as well, they shall try to call their own colleagues, make appointment with them, see how they react, etc. This will give a good understanding of how the market feels when they approach the authority on different levels. This is firsthand feedback that you will never hear about at conferences or round tables.
I also think that previously the authority paid a lot of attention to merger control matters. Now with the latest changes to the law on merger control thresholds, this will no longer be the case, but instead the authority will have to reshape its practice to more substantive matters. This move was anticipated some time ago, and the steps should already have been taken to change the practice. So I suppose the changes in this regard are on their way. The practice shall consist predominantly of interesting substantive cases on infringements, private enforcement of competition law as well as trying of regulator’s decision in the court.
UJBL. What kind of antimonopoly risks do you observe from the perspective of your clients? What is the difference across the jurisdictions of your presence?
A. Y.: CLACIS provides competition law services in Ukraine, Russia and Kazakhstan. And all such jurisdictions have a lot in common in this area of law. We learn a great deal from professionals that we work with in different jurisdictions. Why do you think professionals who handle cases on multijurisdictional levels in London or Brussels are so bright, they accumulate professional knowledge of not just their own jurisdiction, but from the best lawyers around the world. The competition law principles are similar in many jurisdictions and the issues clients face in different countries are often similar as well. Therefore, multijurisdictional practices are convenient for clients as lawyers inside of such framework may easily share their experience and deal with similar matters more efficiently in terms of time spent, substantive analyses, etc. For instance, a general trend that we see now is market players try to achieve economy of scale and economy on costs within the industry especially where logistics constitute a considerable amount of final product price. In order to achieve efficiency a lot of joint ventures are established. Such joint ventures usually involve competition law matters. And this current trends we see in all jurisdictions where we operate.
The major difference is mostly in enforcement. A private practice lawyer appreciates the most public consultation with the authority, and this is different in different places.
UJBL. Over the last couple of years you have developed the practice of multijurisdictional competition law investigations. How does the role of a legal counsel change? What kind of industries are the most sensitive in this regard? Can you name the most interesting and challenging case in your practice?
A. Y.: The industries involved are similar in many places. These are either socially sensitive markets, heavily subsidized markets, or simply large dominant market players. We have several clients now whom we help in all 3 jurisdictions where we are present on a regular basis. This is my professional pride, as such work confirms that my concept on pan-CIS competition law practice works even in very turbulent economic times.
Indeed, we never focused much on merger control work, although this is work that we do with pleasure as well for our clients. Our main focus was on competition law investigations. We like cases where we need to justify fair pricing to the authority, defend the client in difficult producer distributor cases, properly shape the recommendations for clients in difficult cases on infringements so that clients do not face sanctions and such decisions overcome a changing political environment, etc. There are many interesting cases we have handled in pharma, steel, FMCG and many other industries, but this is not something clients like to share via publicity. One of the most interesting cases we handle now is litigation against a decision adopted by the AMCU, which will definitely be precedent setting in many respects.
UJBL. Do you expect changes in the traditionally monopolized industries that were ignored by the AMCU for political reasons? Should we expect to see huge reshaping of markets in the near future?
A. Y.: I very much hope that the AMCU will indeed start reshaping the market in those places where it is necessary. There are many instances where this would be very desirable. When you see cases where a private party wins tender procedures for export instead of a state company winning such procedures on the same market and actually providing profits obtained from exports into the state budget you start to wonder why it is so. At the same time, the AMCU is a powerful tool — any intrusion into the market may cost both the market and the state a fortune. So decisions have to be very carefully balanced. I think the AMCU is off to a good start with many such initiatives that I hope they will develop.
UJBL. What changes in competition law do you anticipate in terms of implementation of European legislation and the Association Agreement that Ukraine signed with the EU?
A. Y.: As a practicing lawyer I would very much want to see more on the following: regulation on concerted actions, both horizontal and vertical, procedural changes of review of cases on infringements; assessment of horizontal joint ventures, private enforcement of competition law, and many other areas. Also, as I mentioned above, a practicing lawyer appreciates new law, but he/she appreciates even more a law’s proper implementation, and this is the main target of the authority!
UJBL. What are the plans to develop CLACIS?
A. Y.: CLACIS is a convenient platform for many multinational clients. It is a value-for-money approach for competition law services at regional level — services which to date have only been provided by international law firms on a regional level. Many of our lawyers previously worked in large law firms and know exactly how to work with large multinationals. As to plans we plan to enhance our practice in jurisdictions where we are present already and retain our good professional rankings as well as expand CLACIS to other jurisdictions!
CLACIS
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