Antitrust, Regulation and Foreign Investment

Advice from an integrated team of lawyers and economists

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 wide variety of sectors. Clients benefit from the integrated practical and incisive advice from our team of lawyers and economists, both on filing obligations around the world and on the substantive competition issues. In merger control, our focus is on providing robust, commercial advice on the key issues raised and ensuring that these issues are identified at the outset and addressed effectively and efficiently.

M&A and FDI

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. 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, working with trusted local counsel where required.

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, including pharmaceuticals, financial services, mining and natural resources, transport, utilities and energy. We have also assisted immunity applicants in global cartels and worked with clients to successfully minimise follow-on litigation and class action liability. We have advised executives personally, as well as Boards, on responding to whistle-blowers and investigations. This breadth of experience informs our work with clients in this increasingly criminal area of corporate conduct.

Advice on full lifecycle of investigations

Our integrated team of expert lawyers, litigators and economists 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, appeals 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.

Responding urgently and effectively to a dawn raid is key to protecting a company's legal position in a competition investigation. Our team is ready to assist across the globe having the detailed knowledge and expertise to respond effectively in relation to increasingly multi-jurisdictional and multi-disciplinary investigations, working to ensure your interests (including privilege and confidentiality) are protected at all times. Critically, we understand how priorities, strategy and necessary preparation have changed with the advent of the high-speed electronic search software now deployed by most competition authorities.

Increased regulatory scrutiny

Companies with strong market positions often face additional scrutiny from antitrust and sector regulators. 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. Our integrated economics expertise gives us deep understanding of the nuances of market power analysis. We use this solid foundation to provide clear and effective commercial advice on each client's business strategies.

Navigating investigations across concentrated industries

We frequently advise on areas where the law may be unclear or under-developed and where precedents and guidance may be conflicting. 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. The breadth and depth of experience underpins our strategic insights and our incisive and pragmatic commercial advice on our clients’ business strategies.

Increased regulator reviews

Market and sector investigations are an increasingly important tool for antitrust and sector regulators to review markets that may be perceived not to be working well for customers and consumers. Regulators have significant remedial powers at the end of market investigations, which often involve analysis of a complex mix of competition, regulatory and policy considerations.

Multi-disciplinary expertise

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.

Practical solutions to complex problems

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 competition litigation practice builds on the foundations of our competition law practice and reputation for working towards a successful outcome for challenges to regulatory decisions, as well as judicial review applications against unfair or flawed regulatory decision-making.

Business-focused strategies

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

We provide pragmatic, client-focused advice and have developed business-focused strategies on anticipating and responding to the many challenges of competition litigation, including follow-on damages claims and class actions.

Helping minimise compliance risks

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 provide clear, practical and incisive advice on business structures and strategies across many industries and contexts: drawing upon the combined resources of the team in economics, business strategy, industry and regulatory backgrounds – all designed to minimise compliance risk and maximise commercial outcomes.

Compliance training

We tailor compliance training materials to reflect the particular concerns and to fit the individual corporate culture of each client, working with in-house legal teams to develop effective compliance programmes and accessible training. We regularly brief Boards to reinforce the importance of a top-down compliance culture.

We also prepare clients for the possibility of a dawn raid, by providing tailored training for in-house counsel and senior management. We understand how priorities, strategy and necessary preparation have changed with the advent of the high-speed electronic search software now deployed by most competition authorities.

Evaluating exposure risks

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 evaluate 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 are at the forefront of expertly assisting clients, as well as contributing to the debate on law reform.

Compliance training

We work closely with clients to enhance compliance training to help ensure that each business meets the compliance standards to which they aspire. We also provide practical, incisive and commercial advice on how best to avoid compliance risks, without compromising competitive advantage.

Experience in State aid cases

We have a wealth of 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, which benefits our clients. 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.

Advise on subsidies regime

Our practice covers all industries and areas of State aid, including transport, infrastructure, energy and fiscal 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. In doing so we draw on our experience of EU State aid law, as well as expertise in other relevant areas including trade law and dispute resolution in the UK. We also advise clients on the requirements of the new EU Foreign Subsidies Regulation.

Navigating the subtleties of the access regime

We understand the issues faced by clients who are subject to access regulation, and also those 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 and practical legal advice that aims to achieve client outcomes while minimising risk.

Drawing on wide industry experience

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 as several members of our team have held in-house roles in, or been seconded to, regulated businesses across a range of industries, while others have worked with regulators.

In-depth experience

We are recognised as experts in UK and EU public procurement, and we act for both procuring authorities (central, regional and local government authorities, utilities and other public bodies) and tenderers on many of the largest projects procured in the UK. We regularly advise on complex and high-profile award procedures. Our procurement lawyers have in-depth experience of designing and running complex procurements, advising on procurement options, structuring procurements, compliance with procurement law, preparing tender responses and modifications to contracts, including risk mitigation strategies.

Wide industry expertise

We work with clients across a range of industries including rail, roads, aviation, telecommunications, water, waste, energy, defence, real estate, construction, healthcare, IT, and consultancy services. We are known for our work in the infrastructure sector, particularly in relation to major PFI/PPI contracts.

We 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.