Competition in Regulated Sectors

Supporting regulated utilities in participating in, and the development of, competitive markets

Regulated utilities, particularly those with statutory monopoly rights for the provision of services, will frequently find themselves in scenarios in which competition law is an important factor in strategic decisions and commercial activity.

As regulated markets are opened up to competition, those that benefit from being the historic incumbent must take special care not to engage in activity which might unduly restrict new entry or expansion.

I support companies in understanding their competition law obligations and how this sits alongside the broader regulatory framework.

  • Competition Act investigations
  • Compliance programmes
  • Risk assessment
  • Market opening
  • Advocacy
  • Collaboration with competitors and market participants

How can I support you?

Competition Act 1998 (CA ’98) investigations: I advised Bristol Water during Ofwat’s CA ’98 investigation into alleged abuse of dominance in the market for self lay of water infrastructure for new developments.  I undertook an internal investigation, oversaw a substantial discovery process, led interactions with the Ofwat case team and negotiated commitments after making an early offer of settlement, achieving a significant cost and time saving by curtailing the investigation and avoiding the need for any finding of wrongdoing.  I assisted with the practical implementation of the behavioural and structural changes required by the commitments and have subsequently acted as the independent auditor of Bristol Water’s compliance with the commitments, reporting to Ofwat quarterly.

Competition compliance programmes:  I have assisted a number of water companies with the design and roll-out of comprehensive competition law compliance programmes, including the provision of in-person training.

Risk assessment of commercial activities:  I have assisted various water companies with many specific compliance issues associated with the competition regime as set out in the WA 2003 and WA 2014, as well as the more general issues arising from the CA ‘98.  In particular I help companies manage their participation in contestable markets, such as development services, in order to ensure compliance and minimise the risk of challenges

Market opening: In the run-up to the opening of the non-household retail market to competition in early 2017, companies had to review their existing structure and operations and make strategic decisions about how to participate in the new market (e.g. setting up an associated retail business to compete on a national basis, or exiting the retail part of the market completely).  I advised a number of water companies on the options and their preferred strategies, including the creation of joint ventures, approaches to pricing, managing competition and regulatory compliance within the appointed business and broader group and providing assurance on level playing field issues.

Advocacy: I was part of the team that represented various water companies in front of Ofwat, the CAT and the CC, including the successful defence of clients in: Ofwat/Albion – Bath House/Albion Yard (Thames Water); and Bristol Water/Lanara – Long Ashton (Bristol Water).  I have most recently supported one company on an anticipated arbitration with the supplier of a major source of raw water regarding the price to be charged for that water.

Collaboration with competitors and market participants:  I supported two neighbouring water companies in their deliberations about potential competition in the non-household retail market, including the structure that should apply prior to and post- market opening, and the compatibility of those options with competition law (including merger control).  Acting as joint counsel to both parties, our team concluded that a voluntary notification of the joint venture would not be necessary, taking into account the specifics of the transaction as well as market developments at various key stages.  This proved to be sensible advice as the joint venture was completed without intervention from either Ofwat or the CMA.

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