All Rise for the Adam F. Fanaki Competition Law Moot

Episode Summary

What makes the Adam F. Fanaki Competition Law Moot so special? Host Charles Tingley speaks with moot organizers Katherine Rydel and Majid Charania to learn more about Canada’s premier competition law event for aspiring jurists.

Episode Notes

What makes the Adam F. Fanaki Competition Law Moot so special? Host Charles Tingley speaks with moot organizers Katherine Rydel and Majid Charania to learn more about Canada’s premier competition law event for aspiring jurists. Find out what makes the Fanaki Moot tick and why law students, judges, enforcement officials and private practitioners are so keen to be a part of this treasured fixture on the Canadian competition law calendar.  

Episode Transcription


Welcome to Counterfactual, the podcast brought to you by the Competition Law and Foreign Investment Review Section of the Canadian Bar Association. Counterfactual takes a fresh look at issues relevant to business competition and related areas of regulation, and explores the real and hypothetical worlds to gain practical insights and debate policy. Hope you enjoy the show.



Hello, and welcome to the Counterfactual podcast. My name is Charles Tingley. I'm a partner at Davies and I'm pleased to host this episode of Counterfactual, which takes a closer look at the Adam Fanaki Competition Law Moot held annually at the end of March at the Federal Court of Canada in downtown Toronto. We're joined by the co-organizers of the Fanaki Moot, Majid Charania and Katherine Rydel who will tell us how the Moot came into being and what makes it so special for all participants, including of course, the law students themselves, who get to argue moot problems at the cutting edge of competition law and policy. Before we get started, first a bit about our guests. Majid Charania is Director of Compliance at the Competition Bureau of Canada, responsible for promoting compliance by companies of all sizes with the laws enforced by the Competition Bureau. Majid also lectures competition law at Toronto Metropolitan University's Lincoln Alexander School of Law. He has previously served as Special Advisor to the Commissioner of Competition, and has held positions as a case handler for the Competition Bureau and counsel to the Commissioner of Competition with the Department of Justice. Majid also has completed a mission within the European Commission's Directorate General for Competition in Brussels,



and worked for a leading law firm as well as an energy company. He holds a JD from the University of Ottawa and a Bachelor of International Business Administration from the Schulich School of Business at York University. Katherine Rydel is Counsel to the Commissioner of Competition. Her practice focuses on merger review, misleading advertising, monopolistic practices, and international trade agreement negotiations. She has represented the Commissioner in various litigated files such as the recent Rogers and Shaw merger. Before her time representing the Bureau, Katherine was previously counsel at the Department of Justice's Commercial Law Section, where she provided legal advice on commercial issues across the Department, including us counsel to Natural Resources Canada, in the structuring of a Crown Corporation, and to the Department of Foreign Affairs and International Trade in international real estate transactions. Katherine and Majid are co-organizers of the Adam Fanaki Competition Law Moot and they encourage our brilliant law student listenership to consider participating in this fabulous event.



Katherine, Majid, welcome to the Counterfactual podcast. Thanks so much for having us. Yeah, it's great to be here. Now, we've invited you on to talk about a very special event on the competition law calendar in Canada, known as the Adam Fanaki Competition Law Moot. And I'm very excited to spread the word about this fabulous event, and you are each intimately involved in the moot and its organization. So I thought it would be a great opportunity to have you explain some of the background and discuss why this event is such a great fixture on the calendar. So just to kick things off, how did the competition law moot even come into being? I can start with that one. As you know, the Bureau frequently meets with its international counterparts to exchange ideas. And one of those meetings was with our Austrian counterparts who were visiting us in Gatineau. They were giving a presentation about their outreach and recruitment strategies. And they mentioned the existence of a competition law moot in Austria. Majid and I looked at each other and asked ourselves why we don't have one in Canada, and we decided it would be a fun initiative. We proposed it to the Bureau, the Competition Tribunal and the CBA Competition Law Section who were all very enthusiastic about it. And 18 months later, in 2019, we were able to help host our first moot at the Federal Court in Toronto. That's very interesting. I had no idea about that background, but I guess international cooperation -- that's one of its many benefits, I suppose.



So just to get a sense for the scope and scale of the moot,  how many teams roughly participate in the moot? Happy to take that – so as Katherine mentioned, we started off in 2019. In the first year, we had five faculties and seven teams. And since then we've grown steadily so we have had a mix of five to seven faculties coming for the last several years. And unfortunately in 2020



We had to cut things short because of the pandemic. So it was limited to a written round of arguments only. But actually, this year in 2024, we're going to have the largest moot ever. We've got 10 schools sending teams. And that actually includes, for the first time, two French language faculties. So we'll be running a bilingual moot this year, where two French language teams will be participating. And over the course of the moot, we really try to grow it to ensure that it has a national scope. Competition law, and the Competition Act is a federal statute. And so it makes sense to be as inclusive as possible. So we've done a lot of work in the background to try to attract universities and law schools to the competition. And we're continuing to do that work to make it as representative and “coast to coast” as possible. That's fabulous. I mean, it sounds like this is definitely a healthy and growing moot. Do you have contacts at various law schools and do you maintain



sort of touch points there to be sure that you're integrated into their moot programs? Yeah, that's exactly right. We do maintain contact with the faculties. And we try to both encourage them to participate, but also get feedback from the faculties that have participated so that we're constantly making improvements or identifying areas where we can make changes to just make it the best experience for the students and for the faculties as possible. So we take those relationships very seriously. And we continue to nurture them. And we're very lucky as well, that the competition law bar is such a tight knit supportive community. And we benefit as well from, you know, people within the bar, who have helped us establish some of those relationships and help us in our work to try to attract more faculties to the moot. Well, actually, just to pick up on that, how in your mind is the competition law community, writ large, sort of integrated or incorporated into the moot experience? We are very lucky as a moot, and the students are very fortunate as mooters in that respect. As you know, the moot is run jointly by the CBA Competition Law Section, the Competition Tribunal and the Competition Bureau. So already you have very, very big players participating in  the organization. Of course, we have academia that's involved, whether as judges or faculty instructors, providing instruction as Majid said or coordination. And then the members of the CBA, the Competition Tribunal or Competition Bureau help in various ways. An obvious one is judging. We are very lucky that our students have judges from all sorts of different competition law practices. Sponsorship is a big one. Coaching, of course, we have volunteer coaches, for all of the teams or academic coaches, factum judging, and various volunteer roles, for example, our timekeepers during the actual moot itself, play a tremendous role in making sure that that moot runs smoothly. That's great. I mean, you've described obviously, in our little universe,that you've got three sort of major food groups, I suppose.You've got the Competition Bureau, you've got the Competition Tribunal, and you've got the bar. And I do think that's a very special combination for this moot experience, and gives students a really, really valuable



look into, you know, effectively what is an industry unto itself and, and how the different moving parts work. And I guess I would ask whether students that have participated in the moot have actually, you know, has it kind of changed their trajectory? Maybe they want to be practicing in this area or contributing on the enforcement side or what have you? I'm happy to kick that off. And Katherine, if you've got some thoughts – and it's anecdotal, and this is timely, because this happened a few weeks ago. But I actually ran into one of the mooters in Toronto, where I'm based out of the Bureau's regional office, and she is now articling. This former mooter, and she told me, I'm really interested now in in practicing competition law. I'm actively trying to get a hire-back spot in the competition law group at the firm that I'm articling at


10:00because of my participation at the moot, so it was incredibly endearing and just heartwarming to hear that. But as an anecdote, I think that probably answers your question, you know, the moot clearly has had an impact. I know that students who participated in the first edition of the moot have since either worked at the Bureau or in law firms and competition law groups. So we've started to see the impact. And we continue to see it, including things like run-ins with mooters who now say they want to practice in the areas. So I think the answer to that is, yeah, it has led to some real engagement and interest from the students. I agree with that. I mean, we're fortunate this year that I think we have 15 or 16 firms that are sponsoring, and, of course, the Bureau and the Tribunal are there. Having the students in front of potential employers, it was a huge opportunity. And it doesn't have to be just students from the first year, for example, students that mooted last year, have already had summer jobs and school year jobs. And one is coming back to article, for example, and I've seen a number of students that have taken competition law jobs at the firms as well after having mooted, and they encourage others back at the schools to do the same. So I think we're getting a lot of positive feedback and, and positive results from people having participated. That's fabulous. And I can certainly say in my



small roles involved in the moot as a coach for the last couple of years, and having seen how it all unfolds including with very special receptions and access to, for instance, judges who are able to provide their advice and tips on advocacy and  also just careers and all that kind of thing. It's a really special, as you say, kind of feedback loop. I think that it makes for a great experience. So just thinking about what it is that mooters are actually debating



at these moots,



obviously, you have to come up with problems for them to consider and make submissions on, I wonder if you could enlighten us as to how those are developed, and maybe give us an idea of some of the types of moot problems that have been



argued in the past? Sure. So that's a really important part of the moot because that's where the rubber really hits the road. And we're very fortunate, I think you'd agree that we're living through a very interesting time in competition law.



In the last couple of years, there have been a few rounds of changes to the Competition Act. But even before that, you know, with the rise of things like AI in the digital economy, there's been a lot more focus on antitrust issues than there might have been 10 or 15 years ago, where the focus has shifted and is really linked-up to tangible real world issues that people can relate with. And so that's given us, I think, an embarrassment of riches of topics 



to moot. What we've done inn the past several moots generally is either a problem related to a fictional merger scenario, or an abuse of dominance scenario. We broke with that tradition in 2023, and had a scenario based on deceptive marketing practices. So a different part of the Competition Act. And so we've kind of tested out different sections of the law throughout the course of the moot. And in all of those



fact patterns we've tried to build in, as I said, a relatable topic.



For example, this year’s moot is actually a fictional merger between two online dating platforms or apps, which is kind of fun. In the past, we've had digital music streaming services. You know,  we've had misleading representations related to privacy.



We've had a lot of sort of salient and timely topics



that have been built into the fact patterns. And then in terms of sort of choosing topics and building them. The moot has an advisory committee, which is made up of very senior members of the three organizing partners. So the head of the CBA Competition Law Section, the Commissioner of Competition, for example, and



the Chair of the Competition Tribunal,



are all members of the advisory group. And so they provide input on the direction for the topic each year. And then an example actually that goes to one of your previous questions around integrating the competition law community - we actually rely on volunteers from, from the bar to help actually draft the problem once the direction is set. So there are some folks who do it off the side of their desks, and, you know, put a lot of time and effort into crafting the problem based on the direction from the advisory committee each year. So



that's, I think, a testament to how much support there is for the moot. And how much people you know, consider and spend time on what should be mooted. Every year, we have a cutting edge problem that tests a novel area. And the problem is usually designed to raise issues where there's no clear answer, both to give teams on either side (applicant and respondent) a fair shake. And also just to get people thinking about new and interesting issues. So I for one, think it's kind of an interesting task for us as organizers to corral; it's always fun thinking of the moot problem for the next year. That's super interesting. And I wonder too whether , if you have X many teams as you've described, and you’ve got a really good turnout this year, each producing two factums on a cutting edge problem. That's a lot of intellectual property, as it were. And



I know that last year, there was a really cool innovation that related to how the winning factums were treated. I don't know if you can, do you want to talk about that? Yeah, actually, a couple of things. So I think what you're referring to is,



is something as you said, we started last year, which is to have the winning facta published in the Canadian Competition Law Review. So that's a publication run through the Canadian Bar Association. And, you know, typically, it has articles on various areas of interest in competition law. So the Review agreed to publish the winning facta. And the idea is that we'll do that every year. For the winning teams on the applicant and respondent sides. So that's a great way, I think, for students to showcase their thinking and their ability to do legal research and writing, and it’s something that they can then put on their resume. So you know, if they're the authors behind a piece that then gets published in the CCLR. So that's something we're excited to provide this year as well as part of the stable of prizes. The other thing that we do, and that we have tested this year that relates to the problem is hosting info sessions for the students on the area that the problem touches on, whether it's mergers or abuse of dominance. So this year, we had some colleagues from the Department of Justice from our legal services unit that supports the Bureau do an hour long webinar format information session, to help the students understand the area of law. Some of them benefit from having, you know, taken or being in a competition law class, but not all law faculties offer a competition law course. And so we thought it might be valuable for students, because it's a complex area, to have a bit of training or an opportunity to get a lay of the land for the relevant provisions in the Act. So we started that up this year. And we hope to continue that in the future as well. That's super exciting. And  you've just mentioned a whole bunch of different things that make the moot special, but I don't know if there's anything in particular that either of you feel is,



you know, especially interesting or special about the moot or that's your favorite part of organizing it every year. For me, it's the participation of so many members of the competition law bar and the bench. Majid mentioned the information sessions already. We also had one by Justice Narissa Somji, who came in and did a further information session about oral advocacy. So students are getting a lot of substantive benefit from the moot even before the actual mooting rounds begin.



The students have a huge exposure to competition practitioners, including the private firms, economics firms that sponsor and provide feedback during the rounds, and the bench and



the Department of Justice. And very importantly, obviously, the Competition Bureau itself. The panels are structured in I think a very beneficial way. Most of the panels have one member of the Judiciary, whether sitting or retired, one senior memberor official of government, the Competition Bureau or the Department of Justice, and one senior member of the private bar, or also from economics firms. And every student receives feedback from each of these individuals for each of the rounds. So by the time the students are finished competing, they've received feedback from judges, from economists, from senior counsel, from enforcers, and they can build on that to develop and progress further, which we think is huge. Those feedback sessions, I think, are a hallmark of the Fanaki Moot. And also there are special one on one opportunities with legends in the bar, and, obviously potential employers. Last year, we were very fortunate that Chief Justice Crampton of the Federal Court, and of course of the Competition Tribunal, proposed a fireside chat just with the students, without any coaches or sponsors. And so they had a one on one session with somebody who's



a legend in our field, and we had tremendous positive feedback about that, it was a candid conversation that they really enjoyed. I might add one more point about legends in the fields, we're really lucky in this moot to have a former Supreme Court Justice come out every year and support the moot as a judge. And in this area of law, one of the key pieces of jurisprudence was drafted by this judge, justice Rothstein. And I think it's really cool, but also possibly terrifying for the students to have to argue his own case back to him. I don't know that many other moots can offer that sort of opportunity, either to be exposed to that sort of caliber of jurist, but also to be able to test their ability to argue a case to the person who drafted it. So I think that's really cool. And I think it makes our moot really special. And maybe I'll just build on that to add one more thing that makes the moot special. And that's obviously, with having justice Rothstein that's massive, but we're very fortunate that we have jurists from multiple levels of court, and we have a diversity of views.



This year, I think we already have 10 judicial members that are participating. And in the past, you know, we've had all sorts of people from appeal courts, the Ontario Superior Court, the Federal Court, the Competition Tribunal, Majid mentioned the Supreme Court, we have, you know, different judges with different experiences in different courts. And I think that's, that's exciting for the students as well. That's awesome. There's clearly no shortage of special things related to the Moot. If I may just add another one, which is the actual person in whose  honour the Moot is named. And that's Adam Funaki, a former colleague of mine and a much loved and respected member of the competition law bar, who had spent time with the Bureau as well. So it's, it's a fantastic way to honor his memory every year. It's really a very special experience that certainly I would commend to any law student for any of the  reasons you've enumerated today.



Look,  I'm looking very forward to this year’s Moot. It's taking place on March 22nd, and 23rd, in Toronto, at the Federal Court. And of course,



I want to reach out to all of the mooters, and to wish them the very best and to “break a leg”. But thank you to you both for letting us understand a little bit more about the moot and how special and important it is



to the competition law community and to the students. Yeah, thanks very much for having us. It was great to be able to talk so much about a project that we really enjoy doing. And that is heartening to see, you know, have an impact on the students and on the competition law community. So thanks again for having us. Thanks so much, really appreciate it. All right. Thank you.



Thank you for listening, Counterfactual is produced and distributed by the Competition Law and Foreign Investment Review Section of the Canadian Bar Association. The opinions expressed by the participants in this podcast are their own and do not necessarily represent those of their employer or other organizations. If you enjoyed this podcast or would like to join the Canadian Bar Association, please visit www.25:00