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How merger control enforcement may evolve in 2021
After a tumultuous 2020, one global law firm expects this year to see “significant change” to merger control policy and practices worldwide.
Jerome Doraisamy
Global law firm Allen & Overy has released its Global Trends in Merger Control Enforcement report, examining merger control activity in the past year across 26 jurisdictions.
Speaking about the Australian experience, A&O partner Peter McDonald (pictured) – who co-authored the report – said that the nation has seen an “eventful year” in merger control enforcement and into the early months of 2021, with two major court losses for the ACCC and two bids abandoned.
“Following the federal court’s overturning of the ACCC’s 2019 prohibition of the TPG Telecom/Vodafone merger, as well as the finding that the Pacific National/Acacia Ridge Terminal rail terminal acquisition was not anti-competitive, it will be interesting to see if the ACCC maintains its current strong appetite to intervene in mergers in 2021 and beyond – or instead turns part of its focus on potential changes to merger control laws that may help them in court,” he outlined.
“After several years of particularly close attention to digital businesses in the merger control space in Australia (as well as in Europe and the US) the ACCC is also seeking to progress possible separate merger control rules for large digital firms.
“Irrespective of whether such changes are implemented, we are already seeing a much greater focus on issues such as innovation, access to data, and user privacy in ACCC reviews.”
Looking ahead, the firm is predicting a “period of significant change” to merger control policy and practice across the globe, identifying numerous key areas for observation.
Despite a rebound in M&A activity towards the end of last year, it said, COVID-19 continues to have a major impact on the global economy, and as a result, “2021 is likely to see an increase in attempts by merging parties to rely on the failing firm defence to justify otherwise potentially anti-competitive mergers”, A&O submitted.
“Antitrust authorities will no doubt maintain a hardline approach to such claims, requiring a significant amount of compelling evidence on the impact of the pandemic of competition in each case. But the profound effect of the pandemic on the economy means that some cases will inevitably meet this high threshold. Just how many, however, remains to be seen,” it wrote.
The firm also hypothesised that sustainability will move up the antitrust agenda, it wrote.
“Towards the end of 2020, antitrust authorities started to consider how sustainability issues interact with antitrust policy and what, if anything, should be done to ensure that antitrust rules do not hinder ‘green’ initiatives,” A&O said.
“We expect the debate on these issues to intensify in 2021 and anticipate a growing number of cases where sustainability is a factor in the merger review process.”
Last month, Lawyers Weekly reported on A&O’s Global Antitrust Enforcement Report, which detailed an “interesting year” in the antitrust space in Australia, even with a lack of cartel fines being issued.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly and HR Leader. He has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. In June 2024, he also assumed the editorship of HR Leader. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
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