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Clifford Chance identifies complex risks facing organisations in latest Global Antitrust Trends report

23 March 2016

Clifford Chance identifies complex risks facing organisations in latest Global Antitrust Trends report

International law firm Clifford Chance today launches the third edition of its Global Antitrust Trends report as the internationalisation of antitrust enforcement sees global themes emerge.

The report offers insights into a number of trends that should be on the business compliance agenda for the coming year, as well as statistics that can be used to inform defence strategies, compliance policies and the planning and structuring of complex mergers. 

The report includes:

    1. Research findings on the enforcement of antitrust infringements by European Commission

In the EU, procedural options such as settlement, commitments, leniency and appeals are subject to a number of important trends. Our report presents analysis and statistics from our research into the enforcement record of the European Commission that should inform defence strategies for all businesses under investigation by the European Commission, or facing a potential investigation.  

    2. A sector-by-sector analysis of antitrust risk

EU antitrust enforcement has affected different sectors in different ways, depending on the risk metric applied: impact on revenues and profits or exposure to business disruption and litigation.   Businesses can use the information in our report to target compliance resources efficiently at those business divisions or investee companies operating in sectors that are subject to higher levels of antitrust risk.  For M&A transactions, this information can also be used to identify when more thorough antitrust due diligence, stronger warranties or post-transaction compliance audits would add value. 

    3. Antitrust enforcement trends and statistics in key global jurisdictions (US, Russia, Asia-Pacific and others)

Our report includes insights into enforcement trends in various jurisdictions, with relevance for businesses' global and regional compliance policies. For example, sanctions are having knock-on effects on antitrust enforcement in Russia, Chinese regulators imposed unusually high fines last year and there is a new procedure for opt-out antitrust class actions in the UK.  Recent case law of the EU courts has extended the scope of antitrust liability that businesses can incur as a result of the actions of third parties and there is also an ongoing US investigation into the way that listed companies communicate with their shareholders, which should be on the compliance agenda of public companies, institutional shareholders and asset managers. 

    4. Merger control trends in the assessment of mergers

Our report also looks at merger control trends in all major jurisdictions.  While a number of large and ambitious deals have hit the headlines, our analysis suggests that they are not representative of a global trends towards less risk-averse deal-making or more aggressive regulators.  So with the right antitrust advice, complex deals are still very much achievable.  However, one jurisdiction where we are seeing a recent trend towards stricter reviews is the EU.  Our involvement in several complex Phase 2 deals last year, and a couple of ongoing ones, has given us some important insights into these changes.  These are detailed in our report, and should be required reading for businesses contemplating complex European M&A transactions.  

Thomas Vinje, Chairman of Clifford Chance's Global Antitrust Group comments: "As the landscape we operate becomes increasingly regulated and scrutinised, we are pleased to launch our 2016 Global Antitrust Trends report today which aims to offer readers guidance and insight to navigate risks and highlight opportunities. We understand the concerns on our clients' agenda as the issues they face become more complex- we touch on these in our yearly report, but support organisations on this every day. "

Please contact Nikki Moore for a copy of the full report.