Antitrust in 2022: is your business ready for rapid change?
10 key themes
Welcome to our annual review of the 10 biggest trends in the antitrust world.
We are living through an era in which antitrust enforcement and the external business environment are more closely intertwined than at any point in history. The COVID-19 pandemic has increased society’s expectations of business and accelerated trends toward digital transformation, placing a premium on resilience for countries and businesses.
Our politics are increasingly polarized, sparking a wave of developments in law and enforcement that makes operating across borders more challenging. Governments are playing a more active role in markets and intervening to protect domestic industries and consumers.
And all of this is taking place as our window to tackle climate change narrows, with new forms of collaboration urgently needed to achieve the transition to Net Zero.
Each of these forces has a direct line to antitrust, where the rapid pace of change is driving governments to take a more expansive approach through new laws and by asking enforcers to address a wider set of goals, from economic growth to innovation, productivity, consumer protection and carbon reduction.
Antitrust and foreign investment considerations are increasingly important to our clients’ business-critical challenges, whether they’re executing cross-border deals, digitizing their operations, responding to climate change, or reshaping their workforces in the wake of the pandemic. As our firm’s Senior Partner, I couldn’t be prouder of our top-ranked antitrust group. We hope you enjoy their take on what to expect in the year ahead.
In the US, President Biden has made assertive antitrust enforcement a priority of his administration, appointing progressive leaders to the federal agencies and calling for antitrust laws to be enforced with “vigor.” It is perhaps little surprise therefore that US tech finds itself in the spotlight.
Beyond the US, the European Union (EU), the UK Competition and Markets Authority (CMA), Germany’s Bundeskartellamt and the Chinese State Administration for Market Regulation (SAMR) have introduced (or are planning) new powers to regulate digital businesses, with a complex interplay of antitrust, IP, data, and consumer laws being deployed to achieve a range of objectives from tackling misinformation to keeping personal data safe.
The technological transformation of financial services, manufacturing and energy is similarly in focus as the antitrust/consumer protection lens is turned on companies’ collaboration arrangements, data ownership practices and use of government financing. Many of these businesses are also facing new regulatory hurdles as they adapt their practices to support carbon reduction goals.
Antitrust is also being deployed as a tool to promote innovation, with authorities considering wider theories of harm as they investigate whether deals and collaborations are stifling creativity. This trend is most keenly felt in tech and life sciences as regulators walk a fine line between intervention and encouraging innovation and investment.
These dynamics are reshaping merger review. We’re seeing heightened antitrust scrutiny of certain deals and sectors and more skepticism that mergers are beneficial (or at least neutral) to competition.
At the same time, governments are strengthening their powers to scrutinize investments on national security grounds amid the ongoing power struggle among nations. 2022 has already seen a new regime come into force in the UK, while across the world, governments are paying greater attention to investments in dual-use and emerging technologies deemed critical to both military and economic strength.
Taken together, these forces are combining to create a less predictable M&A environment where deals take longer to close; in turn this is driving dealmakers to litigate against both procedural and substantive decisions by regulators.
Finally, the past year has seen unprecedented international attention on climate change, from the UN’s “code red for humanity” report to the COP26 climate conference in Glasgow. Antitrust will play a critical role in this space, leading authorities to think hard about whether current competition and consumer enforcement concepts should be flexed to address environmental challenges.
We have the privilege of advising at the forefront of many of these regulatory transformations and engaging with agencies around the globe as they introduce new rules and fine-tune the application of existing rules that will impact businesses in the year ahead. We look forward to continuing to work alongside our clients on their strategic and sustainable approaches to these rapidly evolving laws and policies - ensuring an innovative and commercial approach to investment decisions and risk management globally.
Global antitrust in 2022 explores all these themes as well as the impact of competition law on the post-pandemic labor market and more traditional antitrust concepts such as the evolution of cartel enforcement. 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 in our antitrust, competition and trade team.
On behalf of everyone at Freshfields we wish you a happy and healthy 2022.
Global Head, Antitrust, Competition and Trade Group