Tim Cowen is a partner at Sidley Austin’s London office and specialises in UK and EU competition law, with over 28 years’ experience in the field. Cowen is well placed to comment on the differences between working as a private practice lawyer and corporate counsel, having served as general counsel for BT’s international business before recently returning to private practice at Sidley Austin. Who’s Who Legal spoke to him about the nature of his roles over the years and the competencies required to excel both in private practice and as part of an in-house team.
Who’s Who Legal: You have had many different roles in your career. What were the highlights?
In some ways I have gone full circle, from starting as a barrister in Brick Court, through joining a city firm, to going in-house at BT and then back to private practice again.
I don’t know whether it is a highlight, but one of my most memorable cases as a young barrister involved a plea in mitigation for criminal damage. My client had headbutted Thomas Cook’s plate-glass window in his expression of anger at England losing at football. My plea involved me explaining to the magistrate that he needed time to pay and that he had learned his lesson, given that the glass had broken all over his head and shoulders and he had spent quite a lot of time off work, some of it in hospital. I managed to get his “time to pay” down to a small amount per month, which he was delighted about. It was no doubt less my fledgling advocacy skills and more the sorry state of my client that helped in getting the result.
Another highlight was appearing as the most junior barrister in a libel case, for the Sunday People. The plaintiff was an actress who had appeared in a TV show. She claimed that it was libellous for a journalist commenting on her performance in a TV show to say to say that “she can’t sing, she can’t act, and she has a big bum”. This became known as “The Big Bum Case”. We lost in the High Court and it became a cause célèbre for a while, because our defence was the well-known defence of fair comment.
Although these cases were memorable, that is probably because I had focused on the drier area of EU law from the start, working on cases such as trade barriers and regulations governing the designation of sheep meat and chocolate, the rules governing Newcastle’s disease in turkeys and Spanish fishermen’s rights. Much of my time was filled with advising on exciting subjects such as the EU VAT directives and regulations governing different products and product standards. A lot of the work in those days involved cases based on the EU Treaty right of the freedom to provide services throughout the EU, although some was competition law, particularly on the boundary between intellectual property and competition law, which continues to this day.
WWL: You moved in house from Lovell White Durrant in 1991. How was that?
When I first joined BT, it was inefficient and had been recently privatised. The transition from a government department to the private sector was taking some time. It was like stepping back in time with people addressed as “Mr” this and that, and names on office doors and even a tea trolley and biscuits at 11 every day. There was a strict hierarchy with different levels of seniority not being able to talk to each other.
The new organisation that was being created was intent on becoming a world player. My EU law experience was very useful. I helped to develop an advocacy and thought leadership project based on the EU Treaty that we were entitled, as a European company, to provide our services across the entire EU single market without restraint from national laws and regulations. These arguments were supported by the British government and, often working closely with the European Commission, we persuaded many member states to open up their domestic communications markets. It doesn’t seem that long ago but in the early 1990s member states in the EU were dominated by a single national telecoms operator, often state-owned, and the lack of market liberalisation meant little choice for consumers and limited innovation from suppliers. The Internet was still in its infancy. We were seeking to provide data services for business customers, and relying on the EU Treaty we built a business across the continent.
We developed a strategy that involved our customers seeking change on our behalf, and I set up many country associations to create change at national level.
The opening up of EU markets in the 1990s was difficult. Incumbent national operators challenged us at every step. I have only had to advise on criminal law a few times. One was to the then BT CEO for Europe in case our strategy for providing data services in Italy, based on EU law, were to fail. We provided a service and relied on our EU law rights to underpin our provision of services in Italy, but it was a criminal offence to provide that service under Italian national law. The conflict between national and EU law was going to be an issue. Unsurprisingly, finding a business person willing to take responsibility for the project or provision of service in Italy, was a challenge. The CEO accepted that he might run the risk of imprisonment in Italy but that it wasn’t likely and we had a good case. We went ahead and were sued by Telecom Italia, but the Italian national courts upheld our rights.
WWL: You eventually became general counsel of BT’s international business. Can you describe the differences between that role and others you have had?
There is clearly a massive difference between being a specialist adviser in a particular area of law and being responsible for managing a large team of lawyers and other professionals. In my case this did not happen overnight, and it was something I was reluctant to do at first.
It started when my boss in BT sent me on a management training course. The course was outside the company and involved about 15 people who came from different companies and who had never met before, working together on a series of exercises. We had no pre-briefing and when we arrived we were each asked to take on different roles in running different parts of an imaginary paper company. We were given a large briefing pack relevant to each role: financials, product specification, people issues, etc. The course was run over a week and any misgivings about play acting were overtaken by a series of “stress events”. It was run by industrial psychologists who monitored everyone through one-way mirrors. They threw all sorts of spanners in the works just to see how we reacted, individually and as a team. For example, halfway through day three, they let plant managers know that they were using illegal chemicals and polluting rivers, as well as being responsible for badly protected machinery that caused the loss of someone’s hand. They then let us know that there had been a hostile bid for the company. We had three hours to prepare a detailed presentation on the company’s value. I led the team and made the successful presentation.
The subsequent management training took place over five years. It covered both substantive content and practical training in people management and specialist subjects. Understanding subject areas such as marketing, project management, finance, accounting, economics, and other more practical subjects such as project management was part of a multi-year “personal development plan”. I had led small teams in my specialist area of EU and competition law. Following the training I was introduced to a wide variety of smaller, and then larger M&A projects, joint ventures and transactions. The teamwork personal development and leadership side of things was something that I found fascinating.
In the late 1990s I was promoted to running the competition law and public policy team for the UK and worldwide. When I became a general counsel I also picked up responsibility for the regulatory and public affairs teams outside the UK. I joined the international board in the early 2000s.
Something one of my partners in Sidley asked me recently is how I stayed on top of the detail. Part of the answer was that as the business expanded, I recruited people from private practice and defined specific areas of responsibility within an overall specialisation and reporting system.
We also had a clear view of what was worth doing internally and what should be done by external lawyers. This was kept under constant review. In my early days at BT, the cost savings from internalising legal work drove a lot of recruitment and the creation of a large in house team. However, we decided not to internalise specialist areas such as tax and had limited internal litigation functions in most countries outside the UK; competition and regulatory litigation was managed partly internally and partly externally.
I kept a close personal involvement in running competition and regulatory cases with a small team of about three specialist lawyers per country or major jurisdiction. We developed into an organisation driven by quality, and recognised that, as with other professional skills organisations, the volume of work drives up quality and speed of processing; where we did not have the volume to generate quality, we used externals. Formal “core” and “non-core” analysis was also used in defining in-house legal functions.
One management system I introduced was the inclusion of personal targets or commitments in each person’s annual appraisal relating to driving revenue and reducing costs while achieving quality, efficiency and speed. Improvements to our internal processes could make very large business improvements. Each person had to make their commitments at the beginning of the year, agree them with their line management and then deliver them. This led to some surprising contributions. For example, my company secretary found £180 million in back tax rebates. The competition and regulatory team underpinned the profitability of the business by regularly delivering significant damages and savings from holding incumbent suppliers to account for non-compliance with both competition law and telecoms regulation.
In defining different roles and responsibilities, my experience suggests, for example, that it is inefficient to try to do some types of specialist work internally, and that focus on business need and adding value in a dynamic system where internal and external resources work together. Many in-house teams mistake their roles as doing “more for less” than external lawyers. No one thanks the in-house team that cuts costs and creates liability in the process. It is also a short-term strategy for an in-house lawyer to function as a cost centre. I was always keen to measure and manage and demonstrate value being added by the function, whether composed of internal or external lawyers.
When I joined BT it was a UK national operator and most markets had nationally owned and controlled telecoms and postal systems. When I left they had been entirely liberalised and we had built a business that was in 170 counties with significant investments in the main EU member states.
As the initial international expansion project bore fruit, we established overseas businesses and had to build a capability to support those businesses and withstand the inevitable response from many in-country competitors. From that time, I was dealing with governments and regulators and advising on or running antitrust and regulatory litigation to ensure that the newly opened markets were kept open and that the incumbent telecoms operators did not abuse their positions of national market dominance and exclude us from the market. I am still doing those types of cases today and in running cases against Google, both in court and before the European Commission, to prevent it from abusing its dominant position in on-line search markets.
WWL: Could you comment on how you dealt with regulatory and antitrust matters?
I ran a combined team of law, regulatory and public affairs in BT, concerning all countries outside the UK for over 10 years. We built a team of internal specialists with external support. We had offices in Brussels, Washington, Singapore, Sydney and Delhi.
While competition law was one element of the issues that we faced, the policy agenda was much broader. From my in-house experience my view has changed toward how competition cases should be managed. It used to be that the legal discipline of competition law should be dealt with as a narrow legal area run by specialists. Now, I think that competition law needs to be seen as part of a wider public policy agenda for the relevant industrial sector. Key points of looking at competition law within that wider policy environment from my perspective would include:
Fascinating as my work at BT was, one of the reasons I decided to return to private practice was to be able to use my in-house experience and apply it to the broader set of issues faced by a range of clients. Sidley is one of the leading firms in competition, trade and EU work, particularly for technology companies, which is my area of specialisation. It is also one of the most highly respected firms in the world for a long list of legal subjects and for a broad range of clients.