Antitrust, Regulation and Foreign Investment

Timely, accurate and incisive commercial advice is essential for successfully managing merger control issues in global transactions. Ashurst has a long track record of advising clients on complex international mergers across a very wide variety of sectors. Our integrated global team of lawyers and economists consistently anticipates the analytical approach of the competition authorities, and provides a clear strategic framework for compelling merger submissions to the regulator. Our team prides itself on providing practical, incisive advice, both on filing obligations around the world and on the substantive competition issues.

The importance of foreign direct investment (FDI) and national security regimes to international M&A has dramatically increased over recent years as a result of the expansion of existing and new regimes. Ashurst has broad experience in this increasingly complex area, across a wide variety of sectors. We regularly manage FDI analysis and processes across multiple jurisdictions, assessing the sensitivities of the activities at stake, ensuring filings are executed in a coordinated and consistent manner, assisting our clients within the negotiation of commitments or conditions that can be imposed by governments, in all cases working with trusted local counsel where appropriate. We do this as part of our transactional advice or as stand-alone advice, and in tandem with our review of merger control regimes, ensuring a smooth and efficient one-stop shop for clients.

Experience across market sectors

Our global team has decades of experience advising clients worldwide on domestic and international cartel investigations and prosecutions across the full spectrum of market sectors.

Advice on full lifecycle of investigations

Our team also has extensive experience, and an exceptional track record, advising on the full lifecycle of investigations; from the first investigatory step through to final decision and subsequent damages claims. We provide pragmatic, client focused advice to help navigate the many challenges raised by these complex and often long running matters.

Increased scrutiny

Companies with strong market positions are facing increasing scrutiny from anti-trust and sector regulators and prosecutors around the world.

Navigating investigations across concentrated industries

We draw on our depth of experience in this area both from defending the strategies of dominant companies and protecting the commercial interests of their competitors and customers. Through investigative work and expert advocacy, we have successfully assisted many clients in navigating investigations across concentrated industries. Our multi-jurisdictional and multi-disciplinary team works together to advise clients on strategy development, providing robust, commercial advice on addressing and managing this important area of risk.

Increasing scrutiny

Market and sector investigations are increasingly a tool being added to the armoury of anti-trust and sector regulators to enable a wide review of markets that may be perceived not to be working well for customers and consumers. Those investigations often involve a complex mix of competition, regulatory and policy consideration, and confer on authorities very significant remedial powers.

Multi-disciplinary expertise

This has long been an area of expertise and our team has the in-depth knowledge to guide and support clients facing potentially industry-changing investigations in any sector, wherever they arise. Our integrated team of expert competition lawyers and economists offers multi-disciplinary expertise at each stage of an investigation, mirroring the teams fielded by regulators and aiming to deliver the best and most efficient outcomes for clients.

Our global competition litigators provide practical solutions to complex legal problems, drawing on their experience in many of the most significant and high profile cases before the courts. Our integrated global team can assist with forum selection and with cases brought in multiple jurisdictions.

We have been an integral part of the development of private competition litigation policy in Europe including working with policy makers in the development of the European Commission's private actions reforms and the UK's antitrust class action regime. We are also acting for clients in competition litigation actions in Europe, including in France, Germany, Italy and Spain. We have also acted successfully for clients in class actions across a wide range of industries, particularly in Australia.

We have a rich experience of working on the most complex State aid cases both in an advisory role and acting in matters before the European Commission and national and EU Courts. Our expertise is drawn from a broad base. We have acted for beneficiaries and providers of State aid, whether these are central government bodies or other parts of the state apparatus, as well as complainants and other third parties. Our practice covers all industries and areas of State aid.

The relatively new subsidies regime in the UK brings its own challenges. We advise both public and private clients in relation to the UK subsidies regime and represented one of the parties in the very first subsidies based judicial review proceedings in the UK.

We are also advising clients on how to prepare for implementation of the new EU Foreign Subsidies Regulation.

We understand the issues faced by clients who are subject to access regulation, and who seek infrastructure access on regulated terms. Our team helps clients navigate the subtleties of the access regime and their market position to ensure efficient, practical and considered legal advice that achieves client outcomes while minimising risk.

Our lawyers have successfully advised clients in leading cases in this field and across a wide range of "infrastructure" assets: traversing network utility industries (gas, electricity and water), transport and logistic networks (including railways, ports and airports), healthcare, telecommunications, television, postal services, other regulated media industries, and increasingly IT systems and "big data" access.

Our deep understanding of our clients' needs is enhanced through several members of the team having previously held in-house roles in, or been seconded to, regulated businesses across a range of industries, while others have worked with the regulators themselves.

Our procurement lawyers have in-depth experience of designing and running complex procurements and advising on procurement options, structuring procurements, compliance with procurement law, preparing tender responses and modifications to contracts, including risk mitigation strategies. We regularly advise on complex and high profile award procedures. We are also known from our procurement work in the infrastructure sector, and in particular, in relation to major PFI/PPI contracts.

We also regularly advise both public authorities and private sector entities on urgent procurement law disputes and complaints. Our recent experience includes defending Transport for London in High Court proceedings relating to the Silvertown Tunnel Project and Deep Tube Lines and acting for Virgin, Stagecoach and SNCF in a legal action against the Department for Transport over the procurement of the West Coast Partnership franchise.

We have a long track record of helping clients to identify, mitigate and minimise competition law compliance risks through compliance programmes, audits, tailored training programmes, internal protocols and behavioural standards. Our lawyers also create compliance training materials to reflect the particular concerns and the individual corporate culture of clients across numerous sectors. We regularly brief boards to reinforce the importance of a top-down compliance culture and work with in-house legal teams to develop effective compliance programmes and clear, accessible training.

Responding urgently and effectively to a dawn raid is key to protecting a company's legal position in a competition investigation. We work with clients to prepare for the possibility of a dawn raid, by providing tailored training for in-house counsel and senior management. Critically, we understand how priorities, strategy and necessary preparation have changed with the advent of the very high-speed electronic search software now deployed by most competition authorities.

Our team assists clients in the complex field of consumer protection regulation and provides ongoing support through risk assessments and reviews of our clients businesses to understand and reduce their exposure to consumer law risks.

As the law develops in areas such as unfair contract terms, unconscionable conduct, product recalls and consumer warranties, we help clients as well as shaping the debate on law.

We work closely with clients to enhance compliance training to ensure their business meets the compliance standards to which they aspire and advise on how to avoid compliance risks without compromising competitive advantage.