Global antitrust space looks ‘uncertain’ in 2023
As new legislative policies come into play and authorities employ innovative and creative ways of exercising their powers, the global antitrust space looks more uncertain in 2023, a new report has revealed.
Allen & Overy has released its latest Global antitrust enforcement report, which analyses data from 30 global jurisdictions and identifies the key developments and themes shaping authorities’ activities, as well as recent shifts in the global enforcement landscape.
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This follows the release of the firm’s Global trends in merger control enforcement report, released in March this year.
As a result of enforcement being more uncertain this year compared to 2022, the report emphasised that regular appraisal of antitrust risk exposure is a clear business imperative for legal departments.
According to the report, 2022 saw a mixed picture in terms of antitrust enforcement across the globe.
For the jurisdictions surveyed in the report, global fine totals were down significantly from 2021 (US$3.5 billion, compared to US$11.3 billion), with the US, EU, and a number of other key jurisdictions reporting marked decreases in fines. Although 2021 was, in many ways, an anomaly year of bumper enforcement, 2022’s fining totals were also down in 2020, where global fine totals were US$4.9 billion despite the COVID-19 pandemic.
“It seems clear that private damages enforcement will continue to constitute a high-risk area for businesses. The recent trend towards private proceedings being brought as standalone claims, and the allegation of novel types of unilateral conduct, look set to increase, with the UK Competition Appeal Tribunal (CAT) expecting a further ‘explosion’ of similar cases in the tech sector,” the report stated.
“Looking ahead to 2023, it will be interesting to see how the ongoing legislative reforms by antitrust regulators interact with private enforcement, and in particular the extent to which the new rules pave the way for increased follow-on action.”
Within the Australian market, Sydney-based A&O partner Peter McDonald said that the Australian Competition and Consumer Commission (ACCC) would continue to drive legislative change.
“2022 was a significant year for the ACCC as new chair Gina Cass-Gottlieb and commissioner Liza Carver took the helm, following the departure of former chair Rod Sims,” he said.
“Under new leadership, the ACCC has been driving forward significant regulatory change, including the momentous rise of maximum penalties up to $50 million.”
In 2022, the Federal Court also imposed suspended prison sentences on four individuals linked to Vina Money Transfer and fined the company for fixing the exchange rate between the Australian dollar and Vietnamese dong and for fixing the fees they charged customers. This marked the first time that individuals have received prison sentences under Australia’s criminal cartel offences.
“We also saw the first prison sentences (albeit suspended) under Australia’s criminal cartel laws, which is an early sign of the evolution of a more effective prosecutorial approach from the ACCC. Looking at financial markets more broadly, it appears likely that financial services and tech providers will remain high on global antitrust regulatory agendas in 2023,” Mr McDonald continued.
“Another hot topic are competition law issues around sustainability, which can sometimes be a blind spot for firms seeking to collaborate on these matters, along with potential consumer law issues around so-called ‘greenwashing’ claims.”
Of the 30 jurisdictions surveyed, 73 per cent confirmed that their regulator had carried out dawn raids during the course of 2022, conducting in total more than 155 raids.
“Cooperation between antitrust authorities is not a new concept, and there are numerous well-established venues for interaction between antitrust enforcement officials, such as the International Competition Network and the OECD’s Competition Committee. Building on developments from 2021 and the launch of the EU-US Joint Technology Competition Policy Dialogue, these types of collaboration efforts look set to deepen,” the report noted.
“In February 2022, a new working group was announced between the ‘Five Eyes’ antitrust authorities (the UK, US, Australia, New Zealand and Canada) in response to concerns about higher prices resulting from supply chain disruption across the global economy. The working group will meet regularly to develop and share intelligence to detect and investigate anti-competitive behaviour.”