Stephen Wisking is global head of the competition, regulation and trade practice at Herbert Smith Freehills LLP based in London and practising in all aspects of EU and UK competition law. He also specialises in competition disputes (both regulatory appeals and private enforcement) and has conducted cases before national competition authorities and the EU and UK Courts. Stephen is a qualified solicitor advocate and has appeared before the UK Competition Appeal Tribunal. He has worked extensively for clients in the TMT sector.
WHAT INSPIRED YOU TO PURSUE A LEGAL CAREER?
I was attracted by the problem solving and the practical application of law in the real world. I still enjoy it and get a lot of satisfaction from working with clients to develop a legal strategy to help them achieve their commercial objectives.
WHAT QUALITIES MAKE FOR A SUCCESSFUL COMPETITION LITIGATOR?
Competition litigation is a new and evolving area. There is a lot of room for legal creativity and a chance to develop the law. You will find yourself in the Court of Appeal a lot.
Good competition litigators understand the underlying competition and procedural law, are very strategic, willing to take on novel points and prepared for the unexpected! Expert economic evidence is also very important so having a good grasp of economics is key.
HOW HAS THE PRACTICE OF COMPETITION LAW CHANGED SINCE YOU STARTED OUT?
The tools we use have changed a lot – I started in practice nearly 30 years ago at the end of the era of telexes. Law is more fast-paced now; and the issues we deal with in competition are more complex and novel reflecting the emergence of new business models and structural changes in industries. We regularly deal with competition issues as part of larger projects in cross-practice teams. As the importance of competition law has grown, clients are seeking lawyers who can provide truly strategic advice.
WHAT ARE THE MAJOR REGULATORY DEVELOPMENTS IN THE TMT SPACE AT PRESENT? WHAT IMPACT DO THESE HAVE ON YOUR PRACTICE?
There is a lot going on. Regulators are looking at a range of issues which affect the sector, particularly in relation to online platforms, geo-blocking, algorithmic pricing and data. We have also seen a lot of merger activity. It makes for an exciting practice.
WHAT ARE THE MAIN ISSUES PRACTITIONERS CURRENTLY FACE IN RELATION TO VERTICAL MERGERS?
Recent media mergers have raised vertical issues. These are challenging since it is easy to raise the possibility of a vertical issue but whether there is a problem depends on determining whether the merger gives rise to the ability and incentive to foreclose customers and/or suppliers in a sector where wide distribution of content is the norm. These can be difficult factual and economic questions to get to grips with.
HOW IMPORTANT IS IT THAT THE GENERAL PUBLIC HAVE AN UNDERSTANDING OF COMPETITION LAW? HOW CAN REGULATORS MAKE IT MORE ACCESSIBLE?
Consumers benefit from competition; they get goods and services at lower prices and better quality and availability. However, competition enforcement is often targeted at sectors and parties that do not supply consumers directly and this can seem overly complex, technical and distant. It is incumbent on regulators (and I do believe they get this) to explain in concrete terms how what they do benefits consumers.
LOOKING BACK OVER YOUR CAREER, WHAT IS THE MOST INTERESTING CASE YOU HAVE BEEN A PART OF?
Recently I acted for Sky on the review by Ofcom and later the CMA on the media plurality aspects of the proposed bid by Fox for Sky. As a competition lawyer it was fascinating (and a rare opportunity) to look at the operation of news media in the UK from a plurality rather than a competition perspective.
WHAT IS THE BEST PIECE OF CAREER ADVICE YOU HAVE EVER RECEIVED?
A life beyond law makes you a better lawyer – but is very hard to adhere to in practice!
Stephen Wisking is “a standout name” in the UK market, say sources who “really respect him” for his deep understanding of merger control, abuse of dominance matters and cartel investigations.
Stephen Wisking is the global head of practice of Herbert Smith Freehills' competition, regulation and trade group. He has over 20 years' experience and has been involved in a significant number of landmark competition and regulatory cases at UK and EU level. Stephen specialises in all aspects of EU and UK competition law, including merger control, cartels, market investigations and strategic advice. He advises clients across a broad range of sectors including media (particularly broadcasting), telecoms, energy, pharmaceuticals and professional services.
Stephen is a pre-eminent competition litigator, instructing on the most complex and highest-profile competition disputes (both regulatory appeals and private enforcement). He has been involved in competition litigation since the start of his career and has conducted cases before national competition authorities, in the European courts and the UK High Court, as well being involved in numerous cases in the UK Competition Appeal Tribunal (CAT) since its inception. Stephen is a qualified solicitor-advocate and has appeared as counsel in the CAT. He is also a member of the CAT users’ group.
Stephen also advises clients on the application of economic regulation and on contentious regulatory matters particularly in relation to telecoms and all forms of media. His cases are often complex and invariably involve highly technical expert evidence.
Stephen speaks and publishes extensively on competition law issues, particularly in relation to competition litigation issues, and was closely involved in the consultation on the revised CAT Rules published in September 2015.
Stephen is qualified as a barrister and solicitor in Australia and a solicitor/solicitor advocate in England and Wales.