Essential Antitrust #25: Antitrust in 2023: 10 key themes - growing unpredictability and brand new enforcement tools
Welcome to our annual review of 10 of the most important trends in the world of antitrust for 2023.
The perfect storm created by the ongoing recovery from the global pandemic, the war in Ukraine and the ensuing energy and cost of living crises casts a long shadow on the global economic outlook for 2023.
Macroeconomic headwinds bring uncertainty for those having to navigate the road ahead but also opportunities as governments seek to promote and encourage innovation and investment and to tackle broader policy goals such as Net Zero.
This confluence of events poses new challenges to the international rules-based order. And antitrust rules are no exception. Add to this the ongoing challenges posed by the green transition and digital transformation, and 2023 is set to be a testing year for global regulatory enforcement and risk as policymakers and legislators jostle to address and curb the effects of these contemporary crises.
In today’s climate of geopolitical and economic turmoil, and with the continued strengthening of regulatory enforcement globally, antitrust, foreign investment and broader regulatory awareness and strategies have never been more important to our clients. Our antitrust group is second to none when it comes to advising on new legal and policy developments in this complex and evolving environment. I hope you find their thoughts on what to expect in the year ahead helpful.
2023 will see a swath of major antitrust reforms across many key jurisdictions, ranging from new legislation aimed at better-equipping agencies to carry out their enforcement agendas to additional powers and responsibilities in new regulatory spheres. The possibility of increased governmental intervention in markets, as agency heads and influential politicians seek to shake up the antitrust playbook, means greater confrontation with the new normal.
The evolution, or perhaps revolution, of antitrust in the digital space, where prescriptive regulation is replacing traditional economic assessment, will continue. 2023 will witness the first significant test of the EU’s new Digital Markets Act and the potential introduction of similar legislation in the United States and other parts of the world. This new approach to digital regulation is likely to be seen elsewhere globally, with unprecedented implications for businesses operating in the digital arena.
2022 saw the introduction of new rules and guidance in relation to vertical agreements, modernized to take into account the proliferation of e-commerce. The seeds were also sown, however, for the revival of older legislation to tackle concerns in the distribution context. Horizontal collaboration will similarly not escape regulatory scrutiny, with a spotlight on key areas of cooperation, such as life sciences and continued discussions around sustainability and environmental objectives, including in relation to industries in transition.
The evolution of merger control is set to continue, with growing skepticism from antitrust enforcers toward M&A and sustained criticism of their perceived underenforcement. The traditional focus of antitrust analysis on the welfare of consumers continues to be challenged as calls are made for wider political and societal considerations to be taken into account in merger assessments. Even acquirers with a traditionally low merger control risk, such as financial sponsors, now find themselves under greater scrutiny. Understanding and anticipating the impact of this shift in focus on deal execution and the extent of cooperation and collaboration among agencies presents both opportunities and risks for businesses and will be critical to success, particularly in cross-border deals.
With the war in Ukraine and global inflation bringing energy policy into sharp focus, climate change and the transition to Net Zero remains a top priority for governments, policymakers and businesses. Antitrust laws play a vital role in supporting decarbonization efforts, as more industries seek to collaborate on sustainability and R&D and state aid rules adapt to promote investment in clean energy and climate-resilient infrastructure. However, political drivers and a lack of consensus internationally make this a challenging area for businesses as authorities continue to balance these goals with their antitrust and consumer enforcement mandates.
Businesses must be mindful of the implications of new rules entering into force in 2023; for example, relating to subsidy control and the impact that such strategic autonomy and sovereignty may bring. Against the backdrop of an economic downturn and protectionist political agendas, the lack of convergence among local rules on foreign investment increases the probability of divergent outcomes.
We are fortunate to represent clients across multiple sectors before many of the world’s most important antitrust enforcers, regulators and courts, which enables us to be at the cutting edge of the latest substantive and procedural developments globally – whether that’s in the context of M&A, investigations or litigation. This puts us in the pole position to advise clients on global regulatory strategies. We look forward to continuing to help our clients successfully navigate these challenges in a changing world.
Global Managing Partner and Antitrust Partner
Antitrust agencies will be keen to ensure that economic disruption does not provide cover for anticompetitive activities – the uptick in the number of dawn raids and investigations in 2022 is therefore likely to continue in 2023, particularly as authorities flex the enhanced powers afforded to them by new legislation. Antitrust compliance – and the implications of a lack thereof – should, therefore, remain high on the agenda for the year ahead.
New methods and novel bases of claims in the antitrust litigation space, including important developments in mass claims, will continue to feature highly as a risk area for businesses in the coming year, especially those operating globally. This sphere will remain very active throughout 2023, reinforcing the need for regular assessment of antitrust risk exposure.
Global antitrust in 2023 explores all these themes, and we will continue to track developments throughout the year in our series of topical podcasts, publications and blog posts. In the months to come, we will be hosting a series of events to debate these fast-moving issues, so if you’re interested in joining, please speak to your usual contact within our antitrust, competition and trade team.
On behalf of everyone at Freshfields, we wish you a happy and healthy 2023.
Global Head, Antitrust, Competition and Trade Group
With thanks to Karen Slaney for her contribution.