The opening chapter of the 2021 Getting The Deal Through: Merger Control publication presents a few key developments relating to the global pandemic and shifting enforcement priorities that we consider will impact the future of merger control.

Global M&A is currently facing extraordinary challenges due to the health crisis and ensuing economic slowdown, which have affected the volume and nature of transactions. Global uncertainties will likely continue to exacerbate protectionist tendencies as governments focus on local economic recovery, thereby putting increasing pressure on competition authorities to take account of industrial policy considerations. Deals risk facing stricter scrutiny, especially when they involve foreign investment in strategic assets, making it harder for global transactions to successfully navigate the merger review process.

Moreover, competition authorities are adapting their enforcement efforts to reflect shifting priorities, including increased enforcement related to the digital economy and, in some jurisdictions, an incorporation of environmental considerations into merger analysis. These shifts in enforcement activity bring uncertainty to regulatory outcomes. At the same time, enforcer victories may prove less fait accompli in litigated mergers than they were even a year ago given the tone struck in the successful challenges mounted by Sabre and Evonik in the US and CK Hutchison in the EU.

We expect that economic and regulatory risk and the shift in enforcement focus will persist throughout the next few years, making careful deal-planning with due regard to potential regulatory hurdles all the more crucial.

The chapter on “The future of merger control” explores these trends in more detail and includes insights contributed by Freshfields lawyers from across Europe, the US and Asia. You can read it here.

To request a copy of the 2021 edition of Getting The Deal Through: Merger Control, which covers the main principles of merger regulation in 68 jurisdictions worldwide, please get in touch with Anna Vaes