We’ve identified five evolving themes that will be relevant for keeping deals on track in 2021. Whether speeding things up or slowing things down, the implications of these developments make it more important than ever to closely analyse antitrust risks and address these in sale documentation early on.

There are more foreign investment regimes catching a broader range of deals in far more sectors than ever before. Given the impacts the development of these regimes are having on transactions globally, foreign investment has become a key component of early stage deal planning for all potential investors.

Whilst aimed at reducing uncertainty for offeree shareholders, the proposed changes to the Takeover Code may have a chilling effect on financial sponsor offerors, with longer term financing commitments and without the safety-net of being able to invoke a condition if a review goes to an unwelcome Phase 2.

The European Commission is increasingly looking to streamline its review of cases that have little impact on competition, meaning faster approvals for stand-alone financial investments. At the same time, the EC is keen to ensure transactions which harm competition do not slip under the radar potentially bringing added scrutiny to bolt-on strategies.

The surge in M&A in Q3 2020 shows that despite the Covid crisis, there is room for significant M&A activity. While antitrust regulators have handled the crisis well overall, dealmakers should pay particular attention to long stop dates, antitrust risk allocation and pre-closing covenants, to make sure that Covid-related delays do not derail their deals.