Getting deals through in 2021: navigating a new political and economic landscape

The COVID-19 pandemic, geopolitical tensions and ongoing debates about the role of antitrust in delivering societal goals have driven a number of developments in 2020 that have affected how deals are being negotiated and reviewed. Changes to merger control and foreign investment/national security frameworks and the regulation of digital markets – designed to ensure certain types of deal are subject to detailed scrutiny – continue to be high on the agendas of policymakers and agencies around the world.

We expect further developments in 2021, with new rules and regimes, better resourced authorities and more detailed review from competition authorities and other agencies all on the horizon.

The changes will vary across jurisdictions, as we see governments taking an increasingly national focus on some issues. All global deals will require a combination of a deep understanding of the evolving broader political and merger control environment, and an integrated antitrust, litigation and corporate team of advisers taking an internationally co-ordinated approach.

Today we published our 11th edition of 10 key themes in global antitrust, which explores these and other developments that will affect businesses planning deals and managing antitrust risk in 2021.

Businesses planning deals in 2021 will want to monitor the following issues and consider the impact on deal timelines, prospects and risk:

• Certain deals will be more likely to undergo merger review in many key jurisdictions and will face more detailed scrutiny from authorities, particularly in innovation-led, data and digital markets.
• There is greater scope for politics to play a role in reviews, with new or strengthened foreign investment/public interest and national security regimes in many countries, and a broader range of factors taken into account by governments, including industrial policy considerations such as national resilience and the strength of home-grown technologies.
• Agencies and policymakers continue to consider the role that broader public policy issues (eg climate change, environmental sustainability, employment security and wage levels) should play in competition analyses.
• A more litigious environment is likely ahead, with parties needing to ensure they are prepared from the outset for potential litigation against agencies deciding to block deals and for litigation between merger parties regarding contractual disputes.

We will be holding a number of events to discuss the implications of these and other developments. If you are interested in joining our discussions, do get in touch.