Expert Analysis

• New Clarity On Directors' Creditor Duty In Insolvency Context

  

  The recent case of BTI 2014 v. Sequana, the first to consider the creditor duty at U.K. Supreme Court level, provides directors and insolvency practitioners with significant guidance on how close to insolvency the company needs to be for the creditor duty to be engaged, say attorneys at Shearman.

• German Draft Bill Reflects Trend Toward New Antitrust Tools

  

  A recently proposed amendment to the German Act against Restraints on Competition continues the trend in Europe to equip authorities with greater powers, shifting from a more traditional approach to a more extensive market protection tool, say attorneys at Gibson Dunn.

• How COVID, Supply Chain Woes Are Fueling Air Cargo M&A

  

  The pandemic has triggered a shift in the air cargo market, with supply chain issues and demand for expedited service attracting new investment — and M&A interest will likely continue, even as inflation and other factors damp enthusiasm, say Solange Leandro and Alison Weal at Watson Farley.

• What To Expect From A Simplified EU Merger Control System

  

  The European Commission’s draft amendments to the EU merger control system, expected to be formally adopted shortly, reduce its administrative burden and expand the scope of the simplified procedure to additional categories of transactions, providing a welcome development for companies and their advisers, say Axel Gutermuth and Lukas Šimas at Arnold & Porter.

• How The Pandemic And UK Security Law Are Changing Deals

  

  Deal makers must consider how the COVID-19 pandemic has shaped the approach to material adverse change provisions in the U.K. and U.S., and how the new U.K. National Security and Investment Act regime will affect investors across the globe seeking to acquire material influence in a U.K. company, say attorneys at Covington.

• 3 Foreign Investment Issues Affecting Cross-Border Deals

  

  Now more than ever, managing the increasingly complex foreign direct investment considerations for successfully completing cross-border transactions requires parties to be attentive to the evolving regulatory landscape, particularly in the U.K. and EU, say Chase Kaniecki and William Dawley at Cleary.

• A Review Of The New UK Financial Services And Markets Bill

  

  In revoking retained EU law and replacing it with U.K.-specific legislation, the new Financial Services and Markets Bill should mean a less cumbersome and more accessible regulatory regime than the existing patchwork of requirements, with provisions that address consumers’ concerns that they were not adequately protected, say attorneys at Ashurst.

• Tracking The Global Move Toward Tighter Mergers Scrutiny

  

  The recent merger control case of Vivendi and Lagardère in France is indicative of a global trend of competition authorities applying stricter standards to concentrations and pursuing an increasingly aggressive enforcement agenda, particularly in the media sector, says Jérémie Marthan at White & Case.

• Dutch Merger May Promote Behavioral Remedies Across EU

  

  A Dutch tribunal's recent clearing of the Sanoma-Iddink deal might further encourage merging parties in the EU to offer — and government agencies to accept — behavioral remedies, which was rarer when more emphasis was put on divestments, says Robert Hardy at Greenberg Traurig.

• Proposed Foreign Subsidy Regulation Has Political Overtones

  

  The European Commission's proposed Foreign Subsidies Regulation aims to prevent subsidies that have a distortive effect on competition from being granted to foreign companies, but in directing it against governments that use companies to extend their influence in the EU, the implications are clearly political, say Lena Sandberg and Yannis Ioannidis at Gibson Dunn.

• Early Trends In UK National Security Reviews Of Transactions

  

  The U.K.'s move to block an intellectual property deal between Beijing Infinite Vision Technology and the University of Manchester — the first such prohibition under the recently implemented National Security and Investment Act — is part of a growing body of published decisions that provides useful lessons on achieving prompt security clearance, say attorneys at Arnold & Porter.

• Guidance Notes Offer Insight On UK National Security Regime

  

  The U.K. government recently published long-awaited market guidance notes that add a greater level of transparency regarding the national security and investment regime, providing welcome guidance to businesses and their legal advisers on submitting transaction notifications, say attorneys at Cooley.

• Ruling On EU Commission Merger Reviews Signifies U-Turn

  

  In validating the European Commission's new policy of using Merger Regulation Article 22 to review cases that do not qualify under the merger control rules of the requesting member state, the General Court has demonstrated that the EU is prepared to move the goal posts on well-established commission policy, say attorneys at King & Spalding.

• Where New UK And EU Vertical Agreements Rules Diverge

  

  The lack of alignment between new EU and U.K. rules on vertical agreements is likely to present challenges to multinational businesses, and it would be prudent for legal advisers and companies to bear in mind the most stringent obligations of both, says Robert Bell at Armstrong Teasdale.

• A Look Ahead At What The German M&A Market Holds In Store

  

  Despite signs of a possible recession, there is still significant M&A activity in the German market, with long-term strategic planning, private equity investors, multiparty involvement and even the state all playing an important role, says Michael Ulmer at Cleary.