Elizabeth Avery
Office:
L35, Tower Two, International Towers Sydney
200 Barangaroo Avenue
Barangaroo
NSW 2000
City:
Sydney
Country:
Australia
Tel:
+61 2 9263 4362

Questions and Answers:

Who's Who Legal Thought Leaders - Competition

Elizabeth advises on enforcement litigation and investigations, merger clearances and strategic advice.  Having practised antitrust in New York, she brings a breadth and depth of perspectives to her advice, which spans a broad range of industries, with a particular focus on multi-jurisdictional and financial services matters.  Recently, she has advised on the ACCC Inquiry into Residential Mortgage Pricing. She is representing K-Line in the first criminal cartel prosecutions in Australia.

WHAT IS THE MOST MEMORABLE CASE YOU HAVE WORKED ON?

One of the reasons I love competition law is that every case is different, based on its own unique set of facts. In that way, every case I work on is memorable. The first case I worked on – and the reason I became interested in competition law – was the Superleague case, when I worked as an associate (judicial clerk) at the Federal Court after law school. The case involved so many issues arising from the establishment of a rival rugby league competition – it was a real tutorial in competition law, and at the same time was an exciting mix of strategic, economic and social policy issues. Since then, I have been fortunate to work on many exciting cases, including (when I worked at Weil) successfully defending American Airlines in a predatory pricing case against the US DOJ, Westpac’s acquisition of Lloyds Australian business, the Australian aspects of ABI InBev’s acquisition of SABMiller, and currently, representing a defendant (K-Line) in one of the first criminal cartel prosecutions in Australia.

HOW DOES YOUR EXPERIENCE STUDYING AND WORKING IN THE USA ENHANCE YOUR INTERNATIONAL PRACTICE?

My experience studying at NYU and then working at Weil, Gotshal in NY for eight years has had a significant influence on my practice since my return to Australia. It has helped me to “think outside the box” about issues faced by clients in Australia, drawing on a broader, comparative perspective of antitrust/competition policy. The global perspective on regulatory engagement has also assisted in understanding the complicated jigsaw puzzle of a multi-jurisdictional perspective. In addition, it gave me a great network of friends and colleagues around the world, which has continued to expand since my return to Australia, enabling me to develop trusted working relationships leading to a range of multi-jurisdictional matters. 

WHAT ROLE DOES, AND SHOULD, THE REGULATOR TAKE IN RELATION TO COMPETITION LAW IN AUSTRALIA?

The Australian Competition and Consumer Commission (ACCC) takes a role that it often describes as “proactive” to assist in “making markets work”. This philosophy translates into a lot of work for the ACCC, keeping them and private practitioners, very busy. While there is certainly debate as to whether the level of intervention is warranted, given the significant compliance costs, at its core, the ACCC’s focus is on rigorous scrutiny of competition law issues. It is respected as a serious regulator. Going forward, it will be important that the ACCC stays away from populist pressure that detracts from that focus.

HOW HAVE THE ACCC’S ATTITUDES TO REGULATION AND INVESTIGATION IN THE FINANCIAL SERVICES SECTOR CHANGED OVER TIME?

Regulation of financial services is extremely complex, taking into account the need to balance stability with competition. While not the inverse of each other, there may sometimes be tension between the two – competition is only a part of Australia’s economic framework. Australia and its financial institutions were extremely fortunate to avoid the worst of the global financial crisis. Australia’s Productivity Commission has recently been critical of the prudential regulator’s failure to take into account the competitive impact of some of its policies intended to reduce perceived risk, and advocating for the ACCC to play a strong role in financial services. The government has recently funded the ACCC to set up the Financial Services Unit, so we expect the ACCC to maintain and increasingly focus on financial services.

WHAT QUALITIES MAKE AN EFFECTIVE DEFENCE LAWYER IN CRIMINAL CARTEL PROSECUTION CASES? 

Representing a defendant in a criminal cartel case requires many different skills; some are familiar to a competition lawyer from a civil cartel context, but some are entirely new. Criminal prosecution is of course extremely reputationally significant to a client so there is a lot of hand-holding required through the decision-making process. Having people in the team who are experienced criminal defence lawyers is also critical. 

WHAT CHALLENGES DO HEIGHTENED DISCLOSURE REQUIREMENTS POSE FOR CLIENTS WHEN SUCH INFORMATION MAY BE CONSIDERED COMPETITIVELY SENSITIVE? 

Australia has recently introduced a concerted practices prohibition which would have the purpose or effect of substantially lessening competition, to address a perceived gap in the law resulting from judicial interpretation of “contract, arrangement or understanding.” Disclosures of competitively sensitive information must be even more carefully managed than ever, to limit the risk of that could be construed as having any anticompetitive purpose or effect.

WHAT IMPACT DO YOU EXPECT “OPEN BANKING” AND THE PROPOSED CONSUMER DATA RIGHT (CDR) TO HAVE ON COMPETITION LAW AND PRACTICE IN AUSTRALIA?

It is hoped that the CDR will provide benefits to consumers by reducing the costs of switching and facilitating new entry. At the moment, the requirement will only apply to those providing banking services and to be rolled out incrementally across other industries; requirements of reciprocity imposed on data recipients are limited. While, certainly, care needs to be taken to ensure that reciprocity requirements are not a barrier to entry, there is a real risk that not requiring any reciprocity from larger data owners will lead to significant market distortions in a world where “data is the new oil”.

Biography:

Who's Who Legal Competition: Lawyers

Elizabeth is a partner in Gilbert + Tobin’s competition and regulation practice.

Elizabeth advises on the competition aspects of complex mergers and acquisitions, litigation and investigations and ongoing strategic/operational advisory work, covering sectors including financial services, fuel, media and technology, resources, travel and leisure, and manufacturing. She has particular expertise in multi-jurisdictional matters, based on experience working in or dealing with multiple jurisdictions and an understanding of the dynamics of coordinating a strategy for representation on a global basis, including the demands of timing, consistency of submissions and responses to information requests and negotiating remedies where necessary.

Elizabeth was recently the lead lawyer advising Anheuser-Busch InBev NV/SA (ABI) in successfully obtaining unconditional Australian merger clearance for the proposed global takeover of SABMiller, which is the largest beer merger in history to date and one of the largest corporate takeovers, named Matter of the Year at the 2017 GCR Awards and International Deal of the Year at the 2017 Australasian Law Awards. Elizabeth is also currently representing Kawasaki Kisen Kaisha Ltd (K-Line), a major global shipping line, in a landmark criminal cartel prosecution in Australia, one of the first prosecutions since the introduction of criminal cartel laws in 2009.

She has deep expertise in financial services and complex investigations.  She is currently advising in relation to the ACCC’s residential mortgages pricing inquiry and also the Productivity Commission’s competition in the Australian financial system inquiry.

Elizabeth provides ongoing advice to a range of clients including ASX Ltd, BlueScope Steel, Carnival Australia, Graincorp, Maersk and Svitzer, Westpac Bank and Wesfarmers Group.

Elizabeth is recognised as a leading competition lawyer in Australia by all leading external peer and client surveys including Chambers Asia-Pacific, The Legal 500 Asia Pacific, Best Lawyers and Euromoney Expert Guides. In particular, Chambers Asia-Pacific 2018 states that Elizabeth is held in high regard by clients, who report: "Her exceptional technical skills are balanced by commercial acumen and a deep understanding of our business. She is an open and constructive communicator who shares her knowledge generously." Who’s Who Legal states: “Elizabeth Avery is a very smart, talented and well-connected lawyer, and certainly one of the best in her jurisdiction.”

She is an officer of the international antitrust committee of the American Bar Association’s section of international law and is involved in many of the committee’s speaking and writing activities on antitrust issues, particularly in the Asia-Pacific region. Elizabeth is also a member of Global Competition Review’s editorial board. She obtained an LLM from New York University where she won the antitrust prize. She also holds a BA (German, and government and international relations), and an LLB (honours) from the University of Sydney.

Elizabeth is admitted to the Bar of New York and in Australia.

WWL says: Elizabeth Avery is deservedly named as a Thought Leader for her “excellent” competition practice. Sources say: “She is very diligent and focused on results for clients.”

This biography is an extract from Who's Who Legal: Competition which can be purchased from our Shop.

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