As companies innovate to compete in rapidly changing markets, regulators around the world are adapting quickly to ensure consumers are protected. In 2018, it is more important than ever to understand the significance of these dynamics, which raise complex legal issues involving an increasing number of regulators around the world. We look forward to discussing with you the key themes in global antitrust and trade and how they affect your business.
Edward Braham, The Senior Partner

Global antitrust in 2018

This year, we celebrate the 275th anniversary of our firm and mark our long tradition of looking ahead to anticipate the impact of changing laws and policies around the world on our clients. In global antitrust and trade, we will continue to see political and economic dynamics shape the enforcement of laws that heavily impact transactional activity and commercial conduct.

EU Competition Commissioner Margrethe Vestager has gained international recognition for pushing novel and far-reaching theories motivated by notions of fair competition, with several of her higher profile targets in 2017 being large US multinationals.

In the US, Makan Delrahim has only recently been confirmed as Assistant Attorney General at the Department of Justice’s Antitrust Division and Joe Simons has now been nominated to serve as Chairman of the Federal Trade Commission. Both are seasoned political appointees and private sector lawyers. Their prior track records would suggest a more conservative approach than the prior administration and a sharp philosophical divergence from the current direction of Commissioner Vestager.

Could 2018 be a watershed year for trans-Atlantic divergence, the likes of which we have not seen since the early millennium? Several important drivers may compound these tensions:

  • fast-moving technology and innovation are changing the way companies compete to sell their products and the way consumers interact with business. Antitrust law and practice are developing fast, but concerns are rising as to whether existing tools are adequate to address the scale and nature of industrial change in the digital era. As agencies balance free market economics with choice and fairness, international convergence on antitrust principles will be tested;
  • the rise of emerging markets is changing the enforcement landscape, as newer, often well-resourced agencies increase enforcement activity in their regions. Many follow EU principles, but important differences in law and interpretation exist. As our recent report showed, no one can afford to ignore antitrust in Asia in global deal planning or corporate compliance; and
  • geo-politics continues to shape enforcement policy as regions face very different economic challenges and political pressures. The re-emergence of protectionism within the G7 and changes in international trade agreements are clear examples of developing laws and policies that are already having a major impact on cross-border trade and investment. Perhaps less obvious is the impact of broader public policy and political objectives on the extending reach of antitrust into a wider range of areas.

I am delighted to enclose our eighth annual review of key trends in global antitrust. We start and finish with important areas of potential international divergence in trade, public interest and foreign investment, and State aid, but also explore how these dynamics will play out on the ground in reality as agencies across all regions take action in 2018 in relation to business consolidation and conduct.

We will be updating these themes through the year, and holding a number of events to discuss their implications in more detail. If you are interested in hearing more, or joining our discussions, please get in touch with me or approach your usual contacts in our antitrust, competition and trade team.

Best wishes for a successful 2018.

Thomas Janssens
Global Head, Antitrust,
Competition and Trade Group
T +32 2 504 7546
thomas.janssens@freshfields.com
The big themes for competition law
Thomas Janssens looks at the changing landscape for global antitrust and trade in 2018.