Getting The Deal Through – Merger Control in 2022 and Beyond

The opening chapter of the 2022 Lexology Getting the Deal Through: Merger Control publication presents an overview of key global developments which suggest that 2022 will be a year of evolution of the regulatory merger control landscape.

Regulatory scrutiny of M&A looks set to continue to intensify across the globe, with all signs pointing towards an increasingly complex and dynamic regulatory landscape for businesses to navigate in 2022 and beyond, particularly with authorities worldwide increasingly seeking to assert jurisdiction over transactions that would not previously have been caught. Against the backdrop of significant policy changes, such as those resulting from the Biden administration in the US, merger-related proposals for digital markets in the UK and Europe, and new interpretation guidelines for the EU’s merger referral system, businesses are well advised to dedicate sufficient and early attention to merger control and other regulatory strategies when contemplating any deal.

We consider that these wide-reaching reform proposals signal a continued effort by competition authorities to address a perceived M&A enforcement gap, particularly in the context of already intensified pre and post-close scrutiny of transactions in innovation-heavy sectors, such as tech or life sciences. Moreover, with an ever-expanding focus on scrutinising deals involving nascent competition, and the role of data, fairness and consumer choice, competition authorities appear set to continue to push and test "traditional" analytical frameworks on any future potential harms which may be generated by M&A activity. This, coupled with a growing focus on data and technology security and superiority, also means that deal activity is increasingly exposed to the impact of geopolitical, public security and other political considerations, all of which are resulting in a tightening of foreign direct investment regimes across the globe.

We expect these developments to result in authorities casting ever wider nets over global M&A activity. As a result, and more than ever before, businesses and their advisors will need to consider the risk of regulatory scrutiny early, continuously and flexibly for global deal planning and coordination.

The chapter "Casting a wider net: more deals under scrutiny" 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 2022 edition of Getting The Deal Through: Merger Control, which covers the main principles of merger regulation in 67 jurisdictions worldwide, please get in touch with Anna Vaes.