The world is living through the most dynamic period in antitrust and competition policy for decades – with pressure for change coming from different directions and likely to generate concrete proposals and political controversy in 2020, plus the global COVID-19 pandemic adding unprecedented complexity and uncertainty.
In this context, this article highlights a number of significant trends and developments of which businesses should be aware.(1)
The COVID-19 crisis has raised a number of antitrust issues and risks that businesses should keep in mind. These range from amended state aid policies, potential competitor collaboration and so-called 'crisis cartels' to exploitative conduct and implications for merger control reviews.
Not a day seems to go by without a new development regarding antitrust and digital markets. Significant reforms are on the horizon. While there may be a temptation to think that only big tech companies face digital issues, all businesses could be affected given the growth of e-commerce.
One aspect of the current digital focus concerns the role of new technologies in antitrust matters. An area in which technology plays an increasingly important role is gathering documents – especially for merger control. There is also a growing reliance on parties' internal documents in merger reviews, and e-discovery tools are being used to respond to document requests.
M&A deals face an increasingly challenging context. Not only are digital transactions subject to greater scrutiny, there is broader and heightened political interest, with calls to reform traditional regimes and approaches.
Some commentators suggest that data supports the view that leniency applications are declining – the rise of antitrust damages actions is one important aspect, but are other factors at play?
Antitrust damages litigation continues to become more prominent, with damages actions now commonplace in major cartel cases and increasingly common in dominance infringements.
Endnotes
(1) A full report on these trends is available here.
