Ongoing challenges in the investment environment from economic and geopolitical factors

Dealmaking has changed in a world of ongoing high interest rates, increasing regulatory activism and geopolitical volatility, and new legal risks from the advent of ESG and AI.  Against this backdrop we are seeing:

• A redirection of investment flows as regulatory fragmentation and use of investment regulation in the form of outbound investment controls, from the US and potentially Europe, impact investment decisions more than ever.
• Earlier focus on regulatory risk strategy to manage both execution risk, with regulators more likely than ever to block deals, and timing risk with review processes extending, especially in the US. This is resulting in greater negotiation of how to apportion risk between signing and closing, for example via reverse termination fees and drop-dead dates.
• A fall in deal valuation as higher interest rates and higher risk aversion take effect.  Valuation gaps between buyers and sellers have the potential to be bridged through creative structuring such as using earnouts, using buyer stock as consideration, and so on.
• A shift in consideration away from debt towards equity and cash as interest rates remain elevated.  This in turn may increase deal activity from corporate buyers, particularly those with listed shares or significant cash piles.
• More focus on due diligence (legal, commercial, and ESG specific e.g. environmental and human rights) as buyers become more concerned about downside protection. AI tools to assist in that process will become invaluable.

These shifts – particularly the rising importance of due diligence and of structuring deals to manage risk – mean GCs and legal counsel have an increasingly important role to play in M&A.

The significant commercial opportunities - and challenges - of the energy transition and getting to net zero

The pace of legislative, regulatory and policy developments across all aspects of the energy transition and getting to net zero is likely to continue to accelerate into 2024.

Nascent markets in clean energy technologies are being fostered, and governments around the globe are developing new policy initiatives and regulatory frameworks. Significant and exciting commercial opportunities continue to arise in the transition from a fossil fuel-based to a clean energy system, while the energy security crisis continues to catalyse the growth of renewables.

Rising costs, and in some cases scarcity, of materials, skilled labour and transportation continue to pose challenges for energy projects across the board. Greater attention to due diligence of these points is impacting deal timelines.

Shifts in government policy in response to the cost of living crisis, and a desire to increase energy security, as well as the potential for change in administrations through 2024, may introduce further uncertainties with which companies, investors and financiers need to grapple.

Increasing stakeholder scrutiny, and tightening regulatory frameworks, are also pushing companies to examine their net zero credentials, ambition and transition planning even more closely. This brings the need for transparency to the fore, heightens legal risk and is giving rise to the noticeable increase in related investigations and litigation including on greenwashing claims.

Unlocking the potential of AI while managing the risks

The rapid rise of generative AI across organisations, industries, and geographies in 2023, has brought new insights into the potential for AI to transform business. Yet the reality of the costs and risks of implementing AI – particularly GenAI – are becoming evident.

Concerns focus on the lack of transparency and control, inaccuracy, biased outputs, and the need to protect privacy and intellectual property. Multiple elections in 2024 raise the spectre of disinformation, deepfakes and highly personalised propaganda.

Governments and regulators are grappling with how to regulate AI and agree global standards, while protecting national security interests and leveraging AI to drive innovation, productivity, efficiency, and growth. We expect new regulation to be progressed across the globe in 2024. In the meantime, regulators are enforcing existing laws to protect consumers, and there are already high profile AI cases and class actions.

To unlock the potential of AI safely in 2024 and beyond, organisations will need to address the evolving legal landscape and establish the right governance and risk management models to safeguard their interests.