Clifford Chance

Technology and protectionism dominate global antitrust landscape

Clifford Chance has published the fourth edition of its Global Antitrust Trends report bringing its unique mix of legal, economic and regulatory expertise to identify themes impacting domestic and international businesses.

The report covers the 'hot topics' of the current antitrust environment, including jurisdictions jostling for primacy, the focus on merger risks in concentrated markets and a new focus on 'gun jumping'.

The report also features sections on current antitrust issues, including:

Technology – Propagation of technology is driving a fast-evolving environment of antitrust scrutiny and regulation, affecting businesses' ability to acquire, implement, restrict and profit from new technology and innovation. Looking ahead, we expect this to lead to an increase in disputes over interoperability, display bias, the value of user data and questions over the impact of algorithms.

Protectionism - There has been a sharp rise in political opposition to foreign takeovers in recent years, and governments in Europe, the US and Australia are proposing to bolster their powers to intervene on public interest and national security grounds. Looking ahead, rising protectionism may also lead to an increase in subsidy-related disputes and enforcement, the legal consequences of which may impact businesses' final investment decisions.

Merger control – mergers in concentrated markets are being challenged more frequently, as are those involving parties with overlaps in their actual or potential R&D pipelines and agencies are asserting jurisdiction over more mergers. Looking ahead, new economic theories could make it more difficult to secure clearances for mergers involving large listed companies or sector-focused PE funds where rival businesses have a substantial number of common shareholders and, in the US, the new administration could bring major changes to merger control including consideration of mergers' impact on domestic employment levels.

Enforcement - Cartel enforcement remains strong, and this trend is likely to strengthen with the introduction of leniency regimes across Asia, Africa and South America. Enforcement against non-cartel infringements such as abuse of dominance is on the rise, particularly in Europe and Asia, and the healthcare sector is under global scrutiny. Looking ahead, syndicated lending could become an enforcement target in 2017.

Thomas Vinje, Chairman of Clifford Chance Global Antitrust Group comments:

“Two themes dominate the outlook for global businesses: the propagation of new technology and the rise in protectionist rhetoric. The former will bring new antitrust challenges and disputes, while the latter may result in greater political intervention in cross-border deal-making and more disputes over subsidies.

“For antitrust enforcement and merger control, the global trend is towards proliferation and complexity, in terms of both procedure and substance. Sophisticated compliance will be required to achieve and maintain a competitive edge in the coming year.”