Baker Botts Highlights Brexit and other International Challenges for 2020
LONDON, January 6, 2020 – Looking to the year ahead, Baker Botts’ International lawyers have highlighted several major trends expected to dominate 2020 across the competition and antitrust, international arbitration and corporate transactional landscape.
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Competition and Antitrust
Matthew Levitt, Brussels and London based Antitrust Partner says Competition authorities globally – including in the EU and the UK – are heavily focused on two issues:
- “The challenge created by the strength of a small number of technology companies with powerful platforms and vast amounts of data; and
- How to address the power of state-owned or state-supported companies, notably those in China, when making acquisitions in Europe.”
Levitt assesses the implications of both issues:
- “The first issue is likely to result in a wide-ranging EU sector enquiry, new investigations and new legislation.
- The second is leading the Commission to re-examine its approach to merger enforcement: should it adapt its approach to market definition, and should it take the presence of foreign state-owned actors into account when assessing mergers involving such companies or in markets where such companies may be present.”
When looking at significant regulation for the year ahead, Levitt touches on the EU’s Green Deal:
- “The EU’s new focus on climate change and carbon reduction – announced in its new Green Deal policy – is likely to impact on various areas of competition and state aid enforcement. Mergers, JVs and cooperative arrangements which advance these environmental goals are likely to be viewed more positively, whilst state aid may be conditioned on the achievement of positive environmental impacts.”
- “Economic efficiency is unlikely to remain the only test by which mergers, JVs and co-operations are judged. In the UK, we may also see a loosening of state aid controls to facilitate support for UK industry and interests.”
With Brexit moving forward Levitt expects several important impacts on competition law enforcement, merger control and state aid:
- “We will see parallel UK and EU cartel and abuse investigations and parallel merger control procedures (possibly with different outcomes) and a new national state aid regime in the UK which could be more nationalistic than the EU equivalent. National public interest considerations are also likely to play a more significant role in merger reviews.”
International Arbitration and Dispute Resolution
Alejandro A. Escobar, International Arbitration and Dispute Resolution Partner in London expects two key trends for the year ahead:
- “More efforts to enhance efficiency and transparency in international dispute settlement; and
- Ongoing efforts to attempt to harmonize the EU’s position on investor-state dispute settlement within the EU area, on the one hand, with general international instruments on the other hand.”
Regarding regulation, Escobar anticipates increasing pressure on:
- “Regulatory compliance; for example, the Odebrecht corruption scandal is having an impact throughout Latin America and beyond. From the perspective of regulatory compliance, parallel issues may arise regarding international sanctions.
- Carbon reduction; if acted upon, this may have far reaching impact on business. There may be political pressure to enact measures (or not) which could lead to contradictions at the local, sub-national and national levels.”
Escobar weighs up the political risk landscape in the UK and notes that:
- “The main question is how Brexit will impact foreign businesses that invested before June 2016. A longer-term question is the consequence of a trade agreement with the United States, including whether it will allow for the arbitration investment disputes.”
Corporate Transactional Activity
Derek Jones, Partner and Department Chair – Corporate (London) highlights the increasing convergence of the energy and technology sectors and the impact of Brexit on the UK:
- “The continued focus of energy companies on energy transition, such as battery storage, distributed ledger technology and the consequent increasing central overlap of the technology and energy sectors.
- The impact of future certainty regarding Brexit given the UK Government’s electoral majority may increase the attractiveness of London as a place for overseas business people to live and to conduct business, meaning a greater chance of them looking to London-based firms for English law advice on their international deals.”
Richard Brown, London based Corporate Finance Partner looks at the prospects of the UK IPO market as a result of the UK General Election:
- “The result of the election and the scale of the majority have lifted a cloud that was hanging over the UK market. It is now more likely that companies will look to IPO.
- However, whether this happens at scale and in a sustainable way will depend on whether the threat of a no deal Brexit at the end of 2020 persists as a credible possibility or is (in due course) replaced by a longer-term transition period pending finalization of a full trade deal.”
Assessing alternative IPO models, Brown says the debate around accessing the public markets will likely continue both in the UK and in the U.S.:
- “The call to broaden the appeal of public markets and to allow wider participation in high growth stories is unlikely to abate. Although private capital pools remain deep and varied, situations like WeWork have raised questions over how that money is put to work and valuations.
- Balanced against moves to widen the appeal of the public markets are regulatory moves being mooted by the FRC to introduce a UK version of the US Sarbanes-Oxley certification for directors in the light of recent corporate failures.”
David Ramm, Corporate Technology Partner in London wraps up Baker Botts’ Outlook with the following insights on Brexit and expected early stage investment activity:
- “The price of sterling should remain stable, even if slightly increased. I would expect more deals to be done in 2020 now that there is political certainty in the Brexit path. The 1-year logjam and delay on deals should be broken and we might see a period of considerable activity from the end of January.
- SEIS/EIS and Entrepreneurs Relief should remain in place this year meaning that early stage investment activity and founder exits should continue.”
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