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.

Dealmakers looking to execute acquisitions involving UK businesses face a new regulatory landscape with the UK’s CMA now having stand-alone merger control jurisdiction and the UK introducing its own national security review process this year. Investors will need to ensure that SPA provisions suitably address the additional risks introduced by these processes.

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.