Digital transformation of the economy means that rapid development and radical policy proposals are now the norm in antitrust. As 2020 opens, a sophisticated understanding of the antitrust environment is therefore more important than ever.
Digital technology has raised questions ranging from whether existing laws and enforcement tools are still fit for purpose to how antitrust should interact with data protection law. At the same time it is spawning new theories of harm, and artificial intelligence is opening up new opportunities both for collusion and for detection of wrongdoing. And protectionism continues to gain ground around the globe, as countries seek to reap maximum benefit from all this new technology, and this increasingly frequently creates tricky political issues for transactions in sensitive markets.
Today we published our tenth annual review of key trends in global antitrust enforcement, which explores these and other themes of key importance to business in the coming year.
Top digital concerns of governments and authorities right now include:
- do enforcers have sufficient powers and resources to intervene quickly enough in fast-moving markets?
- should they have expanded merger review jurisdiction so as to catch acquisitions of promising start-ups (sometimes called “killer acquisitions”)?
- how should they analyse the specific features of digital markets, in particular access to data and network effects?
- how measure competition and consumer welfare should be measured when services are provided to consumers on one side of a two-sided platform without charge?
- are new regulatory bodies, or more and stricter ex ante regulation, needed?
Businesses need to stay ahead of these debates and innovations to make sure they are:
- antitrust compliant in all jurisdictions, possibly making use of new compliance technology;
- ready to defend themselves in an investigation or private litigation; and
- prepared for the increased political scrutiny that certain deals will inevitably face.
Throughout 2020 we will hold 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.