Our Insights into Global Antitrust Trends March 2015

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Focus on fines: trends in cartel fines

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Focus on fines: antitrust contagion

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Practical tips for multi–jurisdictional investigations

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A new era for antitrust damages claims in the EU?

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The perils of public speaking

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Current practice of China and rest of Asia

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Merger control: enforcement trends and remedy options

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State aid tax investigations in the EU

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Distribution pitfalls in the EU

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10. Cutting edge compliance

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Our Insights into Global Antitrust Trends 2015

Clifford Chance

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Introduction Welcome to our second annual review of global antitrust trends. This year, we have picked ten themes that reflect the most prominent antitrust risks faced by businesses around the world in 2015, and the most effective strategies for minimising those risks. Our review kicks off with a focus on fines, covering cartel fining trends in numerous jurisdictions in the EU, US and AsiaPacific (Section 1), as well as the results of our 35-country "antitrust contagion" survey of jurisdictions in which parent companies and private equity firms risk incurring no-fault liability for antitrust breaches committed by their subsidiaries and portfolio companies (Section 2).

Thomas Vinje Chair, Clifford Chance Global Antitrust Practice

We then offer some practical tips on managing multi–jurisdictional investigations (Section 3), explaining how companies can structure their response to conduct with geographically widespread anticompetitive effects, and the steps they can take to mitigate risks. Section 4 explores the likely impact of the EU Damages Directive on private enforcement of antitrust law in the EU, as well as key national developments. We then discuss the perils of public speaking, describing how public disclosures of competitively sensitive information are attracting increasing regulatory attention, and exploring how investor relations and media strategies can be conducted to minimise these risks (Section 5). Turning to Asia, Section 6 looks at recent merger control and antitrust developments in China, and antitrust trends in other Asian jurisdictions. In Section 7, we discuss trends in merger control enforcement rates and filing volumes in major jurisdictions, and options for crafting the right remedy package to minimise delays in clearance. The European Commission's ongoing State aid investigations into tax arrangements in various countries will continue to generate headlines in 2015. In Section 8, we discuss the status of these probes, likely future developments, and how companies can mitigate potential liabilities. Section 9 focuses on the approach of the Commission and national authorities in the EU towards dealings between suppliers and distributors, and online distribution in particular. We finish in Section 10 with a discussion of the diverse range of antitrust compliance options available to companies and current and future challenges for effective antitrust compliance. We can of course only touch on the complex issues raised by many of these themes in this briefing, but if you would like to know more about them, and their implications for your business, the lawyers in Clifford Chance's global antitrust practice would be happy to discuss them with you. Speak to your usual Clifford Chance antitrust contact, or any of the contacts listed at the back of this publication, to arrange a discussion.

Our Insights into Global Antitrust Trends 2015

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Focus on fines

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EU trends in cartel fines In 2014, the European Commission recorded the highest number of ongoing cartel investigations (11) and cartel infringement decisions (10) in five years. Despite the increasing number of infringements, the overall amount of fines imposed by the EC remained close to the average over the last three years (between €1.87 billion in 2012 and €1.69 billion in 2014). The high level of fines reached in 2014 is almost entirely due to the €953 million fine that the EC imposed on six companies involved in an automotive bearings cartel. Italy

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The cartels fined by the EC in the 2010-2014 period concerned widely differing sectors, such as the financial markets, building materials and transport sectors. Financial institutions, in particular, received large fines for their participation in cartels in the interest rate derivatives sector (see opposite page). With other investigations ongoing, the sector is likely to remain under scrutiny for some time. The number of cases opened last year was the highest for five years, suggesting that levels of cartel enforcement by the EC will remain high for some time.

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In Italy, the number of investigations increased significantly in the last three years (from 4 in 2012 to 15 in 2014). The amount of antitrust fines imposed in 2014 (€184 million) put an end to the downward trend of the previous four years (from €111 million in 2010 down to only €8 million in 2013).

Germany  

Germany imposed record fines for cartel conduct in 2014 (more than €1 billion) despite the lowest number of infringement decisions (9) since 2011. The Federal Cartel Office focused on the food and beverage retail sector, as well as on e-commerce and internet companies.

France 

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Cases opened in the EU Cartels found in the EU Fines imposed (in € millions)

In France, despite a fall in the number of cartel infringement decisions (only 3), 2014 saw a marked increase in the level of fines imposed (€956 million, compared to €84 million in the previous year).

U.K.  

In the UK, the enforcement focus has shifted towards smaller markets, reflected in the amount of fines imposed in 2014 (only £370,000). The use of leniency programs or settlements is also significant. Participants in the only cartel that was penalised in 2014 received an average reduction in their cartel fines of 73%.

Spain 

Spain registered a decrease in both the volume of fines imposed for cartels, which was the lowest in the last five years (€39 million), and the number of cartel infringement decisions (8 in 2014). Clifford Chance

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“Fighting cartels remains a core activity for the European Commission. In particular, in the last five years more cartel cases have been opened outside the traditional industrial sectors and, following the global crisis, in the financial markets sector in particular. In Italy the Italian Competition Authority has clearly become more efficient, with significant increases in the numbers of proceedings opened and the amount of fines imposed.” Luciano Di Via, Partner, Rome

4 December 2013

Euro interest rate derivatives  The EC fined Deutsche Bank, Société Générale and RBS over €1.71 billion for their participation in cartels in the Euro interest rate derivatives sector.

21 October 2014

Yen interest rate derivatives  The EC fined RBS, Deutsche Bank, JPMorgan, Citigroup and RP Martin over €2.64 billion for their participation in cartels in the Yen interest rate derivatives sector.  UBS received full immunity, so avoiding what would have been the largest cartel fine in history: €2.5 billion.  Citigroup received immunity for one infringement, thereby avoiding a fine of around €55 million.

Cartels found

Swiss Franc interest rate derivatives  The EC settled the RBS-JPMorgan cartel case in derivatives based on the Swiss franc LIBOR and imposed a €61.6 million fine on JPMorgan.  RBS avoided a fine of around €110 million for revealing the existence of the cartel.

Swiss Franc interest rate derivatives  The EC settled the cartel case in bidask spreads on Swiss Franc interest rate derivatives and fined UBS, JPMorgan and Credit Suisse a total of €32.3 million.  Again, RBS benefitted from immunity, so avoiding a fine of around €5 million.

Fines imposed (in € millions) 1200

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Focus on fines United States trends in cartel fines The 2014 trend in US cartel enforcement paints a meaningful picture: in spite of the decrease in the number of criminal cases filed by the Antitrust Division of the Department of Justice from 90 proceedings in 2011 to 50 cases in 2013, the total value of fines issued – $1.86 billion – was the highest in the last five years ($555 million in 2010, $524 million in 2011, $1.14 billion in 2012 and $1.02 billion in 2013).    

The DOJ focused on prosecuting foreign corporations and corporate executives, and placed significant importance on extraditions and the punishment of individuals. In particular, the majority of the 2014 fines were imposed on foreign corporations. The DOJ has long publicly stated that the best way to deter and punish anticompetitive conduct is to hold individuals (including corporate directors and executives) accountable. In line with this way of thinking, in April 2014 the DOJ accomplished its first-ever extraditions of two individuals based only on antitrust charges. It is likely to continue in the future to push for the extradition of foreign nationals believed to have engaged in cartels.

The DOJ’s fight against international cartels 

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The DOJ investigated the manufacturers of rubber marine hoses used to transport oil between ocean tankers and oil storage facilities. Five companies were found to be involved in price fixing, allocating customers and bid rigging. In April 2014, a foreign national (an Italian manager) was extradited to the US from Germany for the first time solely on the basis of his alleged participation in the cartel. In October 2014 the Canadian Court of Appeal ruled to permit the extradition to the US of a Canadian citizen, alleged to have taken part in a conspiracy to pay kickbacks, commit fraud against the US Environmental Protection Agency’s Superfund Program and bid rigging in contracts for hazardous waste site clean-up.

“Prosecution of foreign companies and individuals continues to be the trend in the US, with increased fines and jail time.” Tim Cornell, Counsel, Washington D.C.

Our Insights into Global Antitrust Trends 2015

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Focus on fines Asia-Pacific trends in cartel fines China

Japan

Australia

In 2014, 8 cartels were fined a total amount of ¥1.46 billion. This was a large increase on the volume of fines imposed in previous years (¥168 million in 2013 and only ¥31 million in 2012), despite there being no significant increase in the number of infringement decisions. The increase in fines is largely attributable to the targeting by the NDRC of large companies, especially in the building materials and automotive sectors, to stimulate competition and regulate the national economy.

Although the number of cartels and the volume of fines imposed has not changed much over the past 5 years, Japan is refining its competition law. In addition, the Japan Fair Trade Commission is further strengthening an already aggressive cartel enforcement (see the chart below), in particular against international cartels.

The two most relevant trends in Australian cartel enforcement are the increasingly consistent use of leniency programs and the growth of follow on actions, particularly class actions. The growth of cartel class actions brought by affected third parties means that the relatively low volume of cartel fines imposed (see the chart below) is not indicative of the total liabilities faced by cartelists in Australia.

Cartels found

Fines imposed (in € millions) 600

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“In most of the major jurisdictions we surveyed, 2014 saw a resumption of the trend towards ever higher cartel fines, reflecting increasingly aggressive enforcement by the antitrust authorities.”

Focus on fines Global overview of trends in cartel fines

David Poddar, Head of Asia-Pacific Antitrust Practice

 Except for some isolated cases (e.g. Australia, Japan, Spain), it is clear that the global trend in cartel enforcement is developing along two lines: – the number of infringement decisions related to cartels has decreased in recent years in the jurisdictions surveyed (although 2014 figures for the US are not yet available); – the amount of fines imposed by the national competition authorities has significantly increased, with fines of over €6 billion imposed in 2014.  The decreasing number of infringement decisions may be a reflection of the increasing complexity of cross–border cartel investigations.  The explanation for the large amounts of fines imposed on undertakings and individuals can be found in the other significant trend of recent years, i.e. the increasing aggressiveness of national competition authorities in prosecuting cartels.

Cartels found

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Total aggregate number of cartel infringement decisions in the US, EU, China, UK, France, Germany, Spain, Australia, Italy and Japan (2014 figures exclude the US)

Our Insights into Global Antitrust Trends 2015

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Total aggregate cartel fines imposed in the US, EU, China, UK, France, Germany, Spain, Australia, Italy and Japan

Clifford Chance

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Focus on fines Key global developments in cartel fines Germany Fining levels for large companies may increase, following a 2013 decision of the German Federal Court of Justice with regard to the methodology for calculating fines.

UK The Enterprise and Regulatory Reform Act of 2013 removed the requirement to prove dishonesty for the criminal cartel offence, making it easier for the Competition and Markets Authority to secure criminal convictions for cartel conduct. France A draft law under consideration would result in parties applying to settle a cartel investigation being provided with details of the maximum fine to be imposed, and the opportunity to offer behavioural commitments.

Japan In April 2015 revisions to the Anti-Monopoly Act will come into force. These include the reform of the process for appealing decisions of the Japan Fair Trade Commission, allowing for direct appeals to the Tokyo District Court.

Australia The Competition Review Panel is considering limiting cartel prohibitions to conduct affecting goods or services supplied or acquired in the Australian market.

Italy In 2014, the Italian Competition Authority adopted guidelines on its fining methodology which recognise the adoption and enforcement of a specific compliance program as a mitigating factor in calculating fines. US US federal courts are currently split on the circumstances in which US federal antitrust laws apply to foreign conduct. Some have interpreted the Foreign Trade Antitrust Improvements Act as requiring that foreign conduct must have a direct, substantial and reasonably foreseeable effect on US domestic or import commerce. Others read the Act as requiring only a “reasonably proximate causal nexus” between the unlawful conduct and the harm in the US.

Our Insights into Global Antitrust Trends 2015

Clifford Chance

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Focus on fines Antitrust contagion Private equity firms and corporate parent companies are increasingly facing liability for the antitrust breaches of their portfolio companies and subsidiaries The European Commission has led the way in the imposition of joint and several liability on private equity firms and parent companies for antitrust fines imposed on their portfolio companies and subsidiaries. Most EU countries now apply a similar approach under their national antitrust laws. However, our survey of 35 jurisdictions shows that the risk is by no means limited to the EU – see the map on the next page. In Brazil there is already a high risk that the corporate veil will be pierced to the detriment of parent companies, and South Africa is currently consulting on fining guidelines that explicitly provide for this approach. In various other jurisdictions – India, China and Turkey in particular – there is potential for the authorities to extend liability to parent companies, albeit with limited evidence of this having occurred to date. In the EU, parental liability can arise:  absent any involvement in or awareness of the breach by the PE firm or parent company;  in respect of minority stakes, if there is evidence that the parent or PE firm exercised decisive influence over the broad commercial strategy of the infringing company (for wholly owned subsidiaries, this is presumed to be the case); and  even after the offending portfolio company/subsidiary has been sold (and sometimes many years after).

Private equity antitrust liability – recent cases Goldman Sachs – fined €37 million by the EC in 2014 in respect of the involvement of a former portfolio company – Prysmian – in a power cable cartel. The fine was joint and several with Prysmian, was imposed some 4 years after GS had sold its last shares in Prysmian, and was partly in respect of a period in which it held only a 32% stake.

Investment firms Arques and 1.garantovaná held jointly and severally liable by the EC in 2009 for the fines imposed on their respective subsidiaries SKW (€13.3 million) and NCHZ (€19.6 million) for their involvement in a calcium carbide cartel.

“The possibility of incurring fines long after the sale of a portfolio investment creates particular risks for PE firms. While contractual structures can be put in place so that the ultimate financial burden rests within the portfolio company or the underlying fund, these offer little protection once the fund has closed, and monies have been distributed. Prevention and detection remain the most effective risk mitigation strategies.” Alex Nourry, Partner, London Our Insights into Global Antitrust Trends 2015

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Focus on Fines Antitrust contagion map

“Our survey shows that risks for corporate parents of incurring ‘no fault’ liability for the actions of their subsidiaries is by no means limited to Europe.” Joachim Schütze, Partner, Düsseldorf

Low risk

Potential for parental liability exists, but limited application to date

High risk

Our Insights into Global Antitrust Trends 2015

National jurisdictions where parents or private equity firms risk incurring liability for breaches committed by subsidiaries/portfolio companies Clifford Chance

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Practical tips for multi-jurisdictional investigations

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Antitrust infringements that appear at first sight to be isolated incidents may be manifestations of a more far reaching problem, attracting regulatory scrutiny in multiple jurisdictions. We explore how companies should structure their response to conduct affecting a wide geographic spread, and what practical steps can they take to mitigate risks.

Investigation strategy 

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Prepare a scoped work plan with a cohesive governing structure and decide who will lead. Regulators frequently prefer outside counsel to run an investigation to avoid appearance of conflicts of interest. Designate counsel to oversee the global strategy, along with local counsel in particular jurisdictions as needed. If management may be involved in the conduct, consider designating a special committee of independent directors to oversee investigation counsel.

Document retention 

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Failing to preserve relevant documents and information adequately can present big risks. It can: – undermine the credibility of the company's investigation; – lead to increased penalty or settlement amounts; – compromise cooperation credit; and – in the worse case, provide an independent basis for sanctions/penalties. Best practices: – Immediately issue a document preservation notice (drafted with counsel's assistance) to be sent to all relevant employees. Monitor and log compliance, and send periodic reminders. – Get familiar with data retention requirements in relevant jurisdictions.

Identify the regulators 

Identify: (i) jurisdictions in which competition agencies could plausibly have an interest in the conduct at issue; and (ii) whether those agencies could plausibly refer the conduct to parallel agencies (e.g. commodities or securities regulators). – A company's home regulator will often take the lead on supervisory failings and other "internal" matters, with non-home regulators focused on the impact of cartel conduct in their particular jurisdiction. – Even in a single jurisdiction, regulators may have competing priorities in line with their respective constituencies, political pressures, and agendas.

Our Insights into Global Antitrust Trends 2015

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“The difficulty of assessing risk, securing leniency, responding to regulatory inquiries, and avoiding debilitating remedies when faced with a multi-jurisdictional investigation requires a coordinated and efficient cross-border legal team and strategy.” Robert Houck, Partner, New York

Managing relationships with multiple regulators 

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Having open lines of communication with each regulator is essential to managing resource constraints. – Companies may need to balance between focusing on regulators in "highenforcement" jurisdictions such as the US, EU and UK, while not alienating regulators in far-flung jurisdictions. – Where possible, coordinate responses to overlapping requests, with similar information gathering processes and a harmonised set of core materials and information that satisfies multiple regulators. Best practices: – Ask each regulator about their preference for confidentiality. – To the extent possible, share information equally among regulators to avoid impairing relationships with regulators who are left out. – Generally assume that regulators are communicating with each other.

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Immunity, amnesty, or reduced sanctions may be available to companies that conduct internal investigations and disclose their findings to competition authorities. Timing may be critical: – Leniency programs frequently reward early reporting only. – Companies frequently aim to be the first one to report cartel activity to competition regulators in an effort to obtain a leniency marker. Where one authority has begun a cartel investigation, consider self-reporting to any other competition authority that may have an interest.

Risks of regulatory disclosure 

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Our Insights into Global Antitrust Trends 2015

Many jurisdictions (including in the EU and Asia-Pacific) have strict data protection and/or bank secrecy laws that restrict disclosure of information related to individuals or customers, but antitrust agencies may be able to overcome these restrictions through memoranda of understanding or legal mutual assistance treaties with foreign regulators. Identify all jurisdictions in which relevant documents and witnesses are located and determine the scope of their data privacy rules. Where necessary, obtain consents of relevant individuals (e.g. employees) to disclosure.

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Practical tips for multi-jurisdictional investigations (continued)

Human resources concerns 

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Increasingly, regulators are focusing on company employees who are personally responsible for alleged misconduct (e.g. the DOJ's LCD Panel investigation). Separate legal representation will often be advisable. Internal discipline: – Coordinate with regulators regarding disciplinary actions. Some may see quick termination as evidence of attempted remediation and strong corporate compliance. Others may prefer the employee remain employed to ensure easy access to the employee and incentives to cooperate. Avoid privilege waivers related to employee discipline: – Some jurisdictions require disciplinary proceedings before terminating an employee. These are conducted by HR (not legal) and are typically not privileged. – Regulators will likely expect disclosure of internal disciplinary materials, which can be roadmaps for identifying illegal conduct. – Structure disciplinary action as being for violations of company policy rather than for breaking a law. – Post-termination, avoid "tail wagging the dog" scenarios (e.g. where the company refuses to settle a dispute with a terminated employee who then publicises their claim in a way that undermines the global investigation). For US investigations, consider a joint defence agreement with individual counsel to protect the sharing of information without destroying confidentiality of privileged communications (but caution: this can limit the company's ability to share information with regulators).

Our Insights into Global Antitrust Trends 2015

Market disclosure obligations 

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Assess capital market disclosure obligations in the relevant jurisdictions and determine when a cartel investigation is sufficiently definite that a disclosure obligation arises. It is usually preferable to avoid financial disclosure for as long as reasonably possible without violating local rules or accounting principles, as these disclosures frequently trigger follow-on civil litigation (e.g. the massive LIBOR civil litigation in the US, which began after UBS disclosed in its financials that it was being investigated).

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“Legal issues are only part of the picture. Effective management of a multi-jurisdictional investigation requires sensitivity to its broader consequences for the company, such as human resources concerns, the impact on public- and investor-relations and implications for compliance systems.” Elizabeth Morony, Partner, London

Public relations 

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Develop a clear communications strategy. The company's PR team should work with counsel to ensure accuracy of communications and strategic messaging for the markets concerned. Anyone speaking on behalf of the company should be advised not to issue premature denials or apologies before the facts are fully developed, as these may be used by regulators or private litigants. Where possible, work with regulators regarding the wording of any settlement or penalty announcement.

Settlement  

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Depending on the severity of the conduct, the company may need to consider settling the investigations. It may benefit a company to try to resolve all global investigations on a coordinated basis. In the cartel context, regulators can seek to have multiple cartel members resolve the allegations at a single time. Resolving parallel investigations separately can leave a company vulnerable to paying more than once for the same conduct or to a disproportionate penalty in a jurisdiction less affected by the cartel.

Privilege 

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Our Insights into Global Antitrust Trends 2015

Privilege protections vary between jurisdictions. Take steps to "level up" the investigation to the strongest privilege available in the relevant jurisdictions. US privilege protections are typically broader than in other jurisdictions. Best practices for preserving privilege: – Engage outside counsel. – Gain a precise understanding of the scope of the privileges applicable in all relevant jurisdictions. – Limit the distribution of – and access to – privileged material by employees (including in-house counsel and compliance) and instruct employees not to discuss the investigation other than with counsel.

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A new era for antitrust damages claims in the EU? The EU Damages Directive

Private enforcement of antitrust law in the EU has developed at different rates in different EU Member States. The EU Damages Directive aims to harmonise opportunities for victims of infringements of EU antitrust rules to obtain full compensation for the harm they have suffered, in all EU countries. The Directive was adopted on 26 November 2014 and Member States will have just over 2 years to introduce legislation to incorporate its provisions into national law. The key changes introduced by the Directive are described below. Disclosure 

Member States are required to introduce “English–style” rules, allowing national courts to order the disclosure of relevant evidence within the control of a claimant, defendant or third party. The Directive provides that privileged material should be protected and requires the court to have at its disposal effective measures to protect confidential information. It will also require that a party against whom disclosure has been sought has the opportunity be heard before any such order is made.

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The impact of these changes in jurisdictions where disclosure is not yet commonplace will be significant, and controversial. The English court system is still likely to be seen as attractive, given the more generous rules already in place and the experience of English lawyers and courts in dealing with disclosure applications.

Access to file and leniency statements

Our Insights into Global Antitrust Trends 2015

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The Directive provides that national courts may order the disclosure of: – information that was prepared specifically for the proceedings of an antitrust authority; – information drawn up by the antitrust authorities and sent to the parties during proceedings; and – settlement submissions that have been withdrawn.

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However, such orders can only be made after an antitrust authority has closed its proceedings. Importantly, the Directive affirms that leniency statements and settlement submissions (that have not been withdrawn) must be protected from disclosure at any time. In relation to access to the authority’s file more generally, national courts may request disclosure from the authority, but this is only available where no party or third party is reasonably able to provide that evidence. This may narrow the scope of domestic provisions in some jurisdictions that already allow a Court liberal access to the antitrust authority’s file.

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“The rules on disclosure of documents are likely to result in big changes in jurisdictions that hitherto had no such rules. However, they will be able to draw on the experience of Member States that have well developed disclosure rules in implementing these changes.” Matthew Scully, Partner, London

The effect of national decisions 

The Directive provides that a finding of infringement in a final decision of a national antitrust authority (or in a judgment of a court to which such a decision has been appealed) will now be deemed to be irrefutably established for the purposes of follow-on damages claims in that jurisdiction. Furthermore, a final decision in one EU Member State may be presented before the national courts of another Member State at least as prima facie evidence that an infringement of antitrust law has occurred. The Directive also introduces a rebuttable presumption that cartel infringements cause harm.

Limitation period 

The Directive requires that the limitation period for damages must be at least 5 years. The limitation period will not begin before the infringement of antitrust law has ceased and the claimant knows, or can reasonably be expected to know, of the behaviour and the fact that it constitutes an infringement; that the infringement caused harm to him; and the identity of the infringer. Further, this limitation period can be suspended if an antitrust authority takes action in respect of the infringement or for the duration of any consensual dispute resolution process.

Joint and several liability 

Member States are required to ensure that undertakings which have infringed antitrust law through joint behaviour are held jointly and severally liable for the harm caused. An infringer may recover a contribution from any other infringer, to be determined in light of their relative responsibility for the harm. However, immunity recipients and small or medium sized enterprises will usually only be liable to their own direct and indirect purchasers, subject to certain exceptions.

Passing on 

The Directive provides that a defendant can invoke as a defence against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the antitrust law infringement. The burden of proof in this regard rests with the defendant.

Class actions 

The Directive does not make provision for collective redress or any form of class action regime. Here, domestic developments have taken over: – The UK Consumer Rights Bill has good chances of being adopted before the general election in May 2015. One of its key changes in relation to antitrust litigation will be to introduce opt-out collective actions and opt-out collective settlements in follow-on and standalone competition cases heard in the Competition Appeal Tribunal. However, the "opt-out" rule only applies to UK domiciled claimants. Claimants not domiciled in the UK will not be parties to the proceedings unless they opt in. – In France, the Loi Hamon introduced a collective action regime in 2014. Under the new law, consumer associations are entitled to bring collective actions in respect of antitrust violations.

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The perils of public speaking

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The European Commission is investigating shipping companies for coordinating pricing through public press releases – so-called ‘price signalling’. Other antitrust agencies have taken action against mobile operators (in the Netherlands) and cement producers (in the UK) for their public announcements of planned future price increases, and against executives for statements made at trade conferences (in Spain). Airlines have faced similar concerns in the US for statements made, among others, in earnings calls with analysts and investors.

Public announcements as a potential anticompetitive concerted practice Competition authorities have been following closely public announcements made by firms concerning their future intentions on prices, production volumes or production capacity. According to guidelines issued by the EC, public announcements do not, in principle, constitute prohibited concerted practices, but might do so if, for instance, one company’s public announcement is followed by announcements by its competitors, since this could prove to be a strategy to coordinate their actions. Recent cases Mobile network operators

Shipping companies

In December 2011, the Dutch Competition Authority initiated an investigation into public statements made by the directors of three mobile operators concerning their future pricing strategies. The investigation was closed after the mobile operators committed to: (i) refrain from making public statements on uncommitted future prices or commercial conditions, whereby their own behaviour could be made dependent on the response of competitors; and (ii) implementing a compliance programme.

In November 2013, the EC opened antitrust proceedings against container liner shipping companies for making regular public announcements of price increase intentions via press releases and specialised trade press.

Hotels

Cement

Airlines

In October 2012, the Spanish Competition Authority imposed: (i) a personal fine on an executive of a hotel chain; and (ii) a fine on the trade association he represented. The Authority found that the executive had made statements at a trade fair which entailed a recommendation of prices in breach of the Spanish Competition Act, although the decision was subsequently annulled by the High Court.

In October 2013, the UK Competition Commission found that three cement producers were using generic price announcements to coordinate their behaviour and therefore obliged them to modify that practice.

In 2010, a US Court admitted a claim about a potential coordination of quantities and prices through statements made by two airlines on analyst calls, speeches, and airline industry conferences. The Court found that the airlines could have arguably used these public statements to coordinate their competitive plans. For instance, both companies had publicly put forward the need to cut capacity in the industry due to the high fuel prices and thereafter had in fact implemented such actions.

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“Companies should consider implementing compliance guidelines for their media- and investor-relations activities, to ensure that statements in press releases, earnings calls, interviews and public presentations do not attract regulatory scrutiny.” Miguel Odriozola, Partner, Madrid/Brussels

The antitrust assessment of public announcements 

Whether public announcements on future strategies about prices, quantities and/or capacity reductions risk being found to be anticompetitive depends on a wide array of factors, such as the structure of the market, the specificities of the sector, the timing of the announcements and the response from competitors.

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An announcement should not raise antitrust issues if the announcer is already committed to the price. For instance, if an airline announces a price for a flight six months in advance and customers may already book the flight, the airline is committed.

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The problem arises when there is no commitment. In such cases, a competition authority will ask: is the announcement addressed to customers to help them with the planning of expenditure, or to competitors to help them align prices? The key is timing.

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The more distant the implementation of the announcement, the more suspect of being addressed to competitors. The line between a legitimate announcement and one that could amount to an infringement must be determined on a case-by-case basis. A few weeks could make the difference, so companies are advised to seek advice before making future announcements on pricing or output to which they are not committed.

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Risks will arise, in particular, if a competition authority find no reasonable justification for the early announcement of uncommitted prices or, for instance, if they find other evidence that supports the suspicion that the price signal was addressed at competitors.

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Companies which release information on their future strategies in compliance with clear regulatory disclosure and reporting obligations of their sector should be exempted from the application of the antitrust prohibitions.

Recommendations for minimising risks We suggest the following steps to minimise the antitrust risks arising from public announcements:

Our Insights into Global Antitrust Trends 2015

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Refrain from making public announcements on future strategies about prices or quantities until the decision-making process in relation to that strategy is complete.

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Do not announce actions concerning future prices or quantities to which you are not committed with an excessively long notice in the context of the sector.

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Abstain from making public announcements on future prices or quantities immediately following announcements made by the competitors.

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Assess the justification and positive effects for customers arising from public announcements.

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Current practice of China and rest of Asia

6

Now in its eighth year of enforcing China’s Anti-Monopoly Law (AML), MOFCOM has emerged as an increasingly experienced and selfconfident organisation ready to make its first transition to a new Director General later this year. NDRC and SAIC have only recently stepped up antitrust enforcement activity and 2015 looks to be a decisive year in terms of how their practices develop, in particular following the recent appointment of a new Director General of NDRC’s antitrust division. Merger Control – MOFCOM

Antitrust investigations – NDRC

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More cases – Since the AML’s implementation in 2008, MOFCOM’s caseload has been steadily increasing – now it is not much less than that in the EU. Over 50% of recently cleared cases benefitted from MOFCOM’s new simplified procedure, which has cut the review time for simple cases down to around 30 days, although delays in pre-notification are still common, particularly around holiday periods.

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Revamped procedures – In December 2014, MOFCOM published new remedies rules, which provide more detail on merger remedies. MOFCOM is also in the process of overhauling its notification procedures and guidance.

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More enforcement – The first public fine was issued in China in December 2014 for failure to notify – ¥300,000 ($50,000) imposed on a partly State-owned buyer of a Chinese electronics firm. On the same day, two further fines totalling ¥600,000 ($100,000) were imposed on Western Digital for failing to comply with terms of its remedy commitments given in 2013 upon its acquisition of Viviti. Expect moves to increase the current maximum fine (¥500,000).

2014 was NDRC’s busiest year since the introduction of the AML. It imposed ¥1.8 billion ($293 million) of fines on foreign and domestic companies in 9 separate cases, and increased staff at both central and provincial levels. In February 2015, NDRC imposed a fine of ¥6 billion ($975 million) on Qualcomm – its biggest ever. Additional cases include: –

Banking – Chinese commercial banks were accused of imposing arbitrary charges and fees on customers. In February 2014, NDRC announced that it had ordered 64 branches of different banks to return ¥409 million ($66.5 million) in fees from the illegal charges, and imposed fines of ¥416 million ($67.6 million).

–

Automobiles – In August 2014, NDRC announced investigations against Chrysler, Audi and Mercedes-Benz. In September 2014, Shanghai DRC announced a ¥31.7 million ($5.2 million) penalty against Chrysler, and Hubei DRC announced an ¥248 million ($40.3 million) penalty against Audi for RPM and related conduct.

–

Auto Parts – In August 2014, NDRC announced that it had fined 10 Japanese auto parts manufacturers a total of ¥1.24 billion ($201.6 million) for colluding to set the prices of vehicles, auto parts, and bearings. Fines ranged between 4–8% of the companies’ sales in the previous year. 2 other Japanese manufacturers were exempted from fines.

MOFCOM – the merger control authority NDRC – price-related anticompetitive conduct SAIC – non-price-related anticompetitive conduct Our Insights into Global Antitrust Trends 2015

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“China's enforcement regime continues to develop apace. However, behind the headline-grabbing fines for Qualcomm and others, a major strand of enforcement action over the next year will be against domestic administrative monopolies.” Richard Blewett, Partner, Beijing

Antitrust Investigations – SAIC

Other Asia-Pacific Trends

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Similar to its counterpart agencies, SAIC continues to slowly build its enforcement capacity by increasing staff and caseload. SAIC investigated a total of 43 competition cases over the last six years, with 13 new cases initiated this year.

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ASEAN Competition Law – As a consequence of ASEAN Member States’ commitment to the ASEAN Economic Community Blueprint, a number of states will introduce national competition law during 2015.

–

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High fines in 2014 – The total antitrust fines in East Asia in 2014 exceeded $1.6 billion, which is the highest level ever. Antitrust authorities in Korea ($1 billion), Japan ($333 million) and China ($258 million) were the largest contributors.

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Bid-rigging remains the biggest focus – Bid-rigging remains the largest area of antitrust focus with $602 million in fines imposed for such conduct, especially in Indonesia, Japan and Korea. Significant fines (of over $1 billion) were also imposed on parties involved in cartel conduct and other horizontal practices.

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India – 2014 saw India’s CCI impose a number of fines for gun-jumping, creating uncertainty as to what transactions need to be notified and when the trigger date for filing occurs.

–

–

Sports and entertainments – Shankai Sports International, the authorised vendor of package tours to the 2014 FIFA World Cup in Brazil for China, was accused of bundling various products and services, such as tickets and accommodation. The Beijing AIC launched but suspended the investigation in June 2014, stating that Shankai had admitted that its actions violated the AML and had taken measures to address concerns. Information technology – In July 2014, SAIC announced that it has launched an investigation and dawn raided Microsoft for the alleged abuse of market dominance, such as bundling conduct. It is reported that around 100 officials (across several locations) are involved in this case. The investigation is ongoing. Tetra Pak – SAIC is expected soon to conclude its two-year-old abuse of dominance investigation into tie-in sales by Tetra Pak. As part of the investigation, SAIC has conducted industry research and surveys, visited companies and hired lawyers, economists and industrial technology experts to analyse the case.

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Both NDRC and SAIC have recently shown a willingness to develop their procedures and respond to criticism in their handling of a number of high profile cases against foreign companies. For example, NDRC is developing a set of rules on leniency and has adopted a settlement decision in one case following commitments given by the party under investigation.

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There have also been recent signs of improvement in relation to parties’ procedural rights, with a participant in the auto parts cartel successfully challenging the level of fine first proposed by NDRC; and the first (albeit unsuccessful) appeal brought against a decision by NDRC under the AML.

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These developments come at a time when the Chinese government is actively seeking to nurture the rule of law in China. Progress has been patchy. In the antitrust context, this has seen the government confirm that a foreign company in an antitrust investigation would be permitted to have counsel present and to consult with them during proceedings.

Our Insights into Global Antitrust Trends 2015

ASIA

Improvement in antitrust enforcement

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Merger control

7

Enforcement trends and remedy options The proportion of notified deals subject to some form of antitrust intervention remains relatively high, and industry consolidation in a number of sectors is likely to see that trend continue. In this enforcement climate, crafting the right remedies is often the key to preserving a transaction's economic rationale and securing timely closing. 

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Filing volumes dipped in the EU and US in 2013, but rebounded the following year in the EU (figures for the US are not yet available). In that same period, filing volumes increased significantly in China, with 47% more filings in 2014 than in 2012. In each of the major merger control regimes of the US, China and the EU, enforcement rates dipped in 2013, but increased slightly in China and the EU in 2014 (figures for the US not are not yet available).

Filing volumes

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The new EU Competition Commissioner – Margrethe Vestager – has put on hold the EC's proposals to extend the EU Merger Regulation to non-controlling minority interests, indicating that they will be redesigned to impose fewer procedural burdens for merging parties. Crafting the right package of remedies is often the key to ensuring that objections of antitrust agencies do not undermine the economic rationale of the transaction and unduly delay execution.

Enforcement Rates* 8%

1600 EU

6%

EU

800

China

4%

China

400

US

2%

US

1200

0%

0 2010

2011

2012

2013

2014

2010

2011

2012

2013

2014

* Enforcement rates: proportion of filed transactions, blocked, abandoned, restructured or subject to remedies as a result of antitrust concerns raised by regulator

“Enforcement rates are being maintained by ongoing industry consolidation in a number of sectors, such as pharma, telecoms and heavy industries.”

“Early consideration and design of remedies can be critical to ensure successful deal execution and avoid unnecessary delay. Purchasers need to decide which remedy options best suit their particular circumstances and commercial needs.”

Tony Reeves, Partner, Brussels

Alastair Mordaunt, Partner, London

Our Insights into Global Antitrust Trends 2015

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How it works: Purchaser or target enters into a binding agreement to divest the overlapping business even before submission of their merger filing.

How it works: Parties identify purchasers of potential divestment businesses during or in advance of the merger review process.

Advantages:  Obviates need for authority to review/remedy the overlap; increases deal certainty  Avoids divestment deadlines (which can impact sale price) and authority cannot veto identity of purchaser (e.g. because lacking in resources or expertise).

Advantages:  Reviewing authority has comfort that the divestment package is sufficiently attractive to potential purchasers (and so does not need to be supplemented).  Minimises delays that can be caused by authority's need to approve purchaser(s), and by any requirement to delay closing until divestments have been made.  Allows the parties more flexibility to tailor the remedy package to the actual – rather than anticipated – concerns of the authority.

Risks:  Deprives parties of arguing their case before authority and securing a more limited remedy, or even none at all.  Divestment may not go far enough to assuage authority's concerns; could be harder to put together satisfactory remedy package having already sold core business.  Any delay to anticipatory divestment (e.g. its own merger control clearance) could mean that it is not taken into account by authority reviewing the main transaction.

Crafting the right remedies – the options

How it works: Parties preserve option either to dispose of all shares in divestment businesses to one or more identified purchasers, or to sell some of the shares through capital markets (e.g. via an initial public offering or spin-off). Advantages: Preserves flexibility to obtain best commercial terms for divestments.

Hybrid divestment mechanisms

Risks:  Authority will still typically require an “anchor” investor. E.g. in Holcim/Lafarge, EC required that an investor acquires at least 50% of divested business and that any consortium investor must have a limited number of members and maintain investment for a minimum period.  May only be acceptable to authorities if remedy package is unusually large, such that there is a scarcity of potential purchasers with sufficient resources to acquire it all.

Our Insights into Global Antitrust Trends 2015

Up–front buyer

Fix-it-first

Flexible divestment packages

Risks:  Potential purchaser for divestment assets may use parties’ need to secure timely clearance for the main deal as leverage in their commercial negotiations.  Divestment may require its own merger control clearance which, if delayed, could hold up closing of the main deal.

How it works: Parties design and propose multiple variations of divestment packages. Advantages:  Allows parties flexibility to secure most favourable commercial terms.  “Crown jewels” package can satisfy authority about viability of the proposed remedies and that closing of main deal need not be delayed pending their implementation. Risks:  Requires additional time and resources to prepare and negotiate. Authority will usually need to be satisfied that each package is a viable stand-alone concern (i.e. with own central functions, access to necessary resources/inputs).

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8

State aid tax investigations in the EU State aid and corporate taxation 

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EU Member States are not allowed to grant State aid without the prior permission of the European Commission. Tax measures can be State aid if selective tax benefits are granted to certain taxpayers in deviation from the “normal level of taxation”. While Member States have the sovereign right to legislate on corporate taxation, State aid rules prohibit them from treating certain (groups of) taxpayers more favourably than others if they are in a similar position.

Global initiative against Base Erosion and Profit Shifting (BEPS) 

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“Not so long ago, fiscal competition between States was deemed a healthy guarantee against uncontrolled public spending. It is now also viewed as a potential abuse of the sovereign rights in the area of taxation. Member States increasingly need to protect their tax base and they know that a coordinated approach between Member States is necessary to achieve this. EU law will tend to fill the existing vacuum. We can expect more State aid cases of this type.” Michel Petite, Avocat of Counsel, Paris Our Insights into Global Antitrust Trends 2015

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In the aftermath of the financial crisis, political upheaval arose about perceived tax planning practices by multinationals. In July 2013, the G20 endorsed the OECD’s project to examine BEPS and to produce an action plan. The OECD identified 15 areas for examination and planned to develop a new set of standards to prevent double non-taxation. In September 2014, the OECD published recommendations covering 7 of the 15 areas.

The Commission’s State aid investigations into corporate taxation (tax rulings) 

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In this political climate, the EC (which took office in November 2014) has defined its mission as including “the fight against tax evasion”. The EC has targeted jurisdictions often accused of facilitating “unfair tax planning” (Belgium, Gibraltar, Ireland, Luxembourg and the Netherlands). The EC may have extensive ambitions to tackle other “double non-taxation” schemes. The EC has opened State aid probes into tax rulings obtained by multinational groups, including Apple in Ireland, Starbucks in the Netherlands, Amazon and Fiat in Luxembourg and Belgium’s “excess profit” rulings system. Preliminary findings suggest the EC considers that the ruling practices of various states may have involved unlawful state aid being granted. The EC has focused in particular on rulings on transfer pricing arrangements. The EC is reviewing the “Lux leaks” evidence (i.e. hundreds of Luxembourg tax rulings published by the International Consortium of Investigative Journalists in November 2014), but it will not limit itself to evidence from one tax adviser: “We need more information from national authorities. But of course we will take it into consideration”. In December 2014, the EC broadened its inquiries and requested information from all Member States on their ruling practice (including lists of all companies that received rulings in 2010-2013). Competition Commissioner Margrethe Vestager indicated that the EC aims to have “first results” in existing probes Q2 of 2015 and “on that background we can decide to open more cases”.

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The current State aid investigations Ireland In-depth investigation into Apple’s tax rulings. Govt subsequently announced end of “double Irish” tax scheme. UK EC reported to have made informal enquiries about patent box regime. HMT announced substantial changes in November 2014.

Netherlands In-depth investigation into Starbucks’ tax ruling.

Belgium In-depth investigation into Belgian “excess profit” ruling system.

What is next?  More investigations likely to be opened after the summer of 2015.  The inquiries might spread to larger Member States.  How will Member States under investigation react? Will they start changing legislation and rulings practices?  Increased momentum for a corporate tax harmonisation or even a common consolidated corporate tax base across the EU?  Parallel legislative initiatives (such as the EC's recent proposal for automatic information exchange information on tax rulings). Our Insights into Global Antitrust Trends 2015

Luxembourg In-depth investigation into tax rulings of Amazon and Fiat. Gibraltar In-depth investigation into entire tax ruling system (no individual company targeted at this stage).

Cyprus, Malta EC reported to have made informal inquires.

“Companies considering obtaining rulings should take advice on the State aid implications and ensure that rulings fully disclose the facts and are soundly argued based on the relevant domestic tax legislation. They should not take into account issues that might be important to domestic governments, but are strictly irrelevant to tax interpretation (such as their activities generating employment opportunities). Companies that have already obtained rulings may want to review them at an early stage to ensure they are compliant with State aid rules and, if not, that remedial action is taken.” David Harkness, Tax Partner, London Clifford Chance

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9

Distribution pitfalls in the EU Dealings with suppliers or customers may give rise to competition law concerns. Although in recent years these “vertical” relationships have not been a focus of the European Commission, this seems to have changed recently. At the national level, the application of competition law to distribution activities remains a major focus of several courts and authorities – the German Federal Cartel Office in particular – and has become a focus of others, such as the UK’s Competition and Markets Authority. There are a number of resulting potential pitfalls for suppliers and distributors, including the possibility of different authorities taking different approaches to enforcement.

Most favoured customer clauses 

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Our Insights into Global Antitrust Trends 2015

The issue of “most favoured customer” clauses is a current focus of authorities and courts in the EU. An example is the recent case in Germany against an online hotel booking platform which obliged hotels to always offer their lowest room price via the platform. The Federal Cartel Office took the view that, while such practices may often benefit consumers, in this case any such benefits were outweighed by the harm arising from the prevention of offers for lower hotel prices elsewhere. Authorities in the UK, France, Sweden and Italy closed similar investigations following commitments by the parties (although the UK case has now been reopened following an appeal) and the Federal Cartel Office is still dealing with two parallel cases in this respect. Enforcement action has also led to MFC clauses being withdrawn or prohibited in relation to online retail platforms (in the UK and Germany) and motor insurance price-comparison sites (the UK). Further court decisions are expected.

Resale price maintenance

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It remains the general rule in the EU (but not the US) that a provider of goods must not directly or indirectly, fix, set or influence (minimum) resale prices, resale discounts, margins etc. of its resellers and there are only very limited exceptions to this principle. However, even the recommendation of resale prices can raise problems, particularly in Germany if, for example, resellers feel pressure from the supplier to apply those prices. For suppliers, the borderline drawn by the authorities between allowed recommendation and forbidden pressure is still difficult to ascertain. Recent developments indicate that potential justifications such as the protection of a brand may not convince the authorities.

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“The application of competition law to distribution activities is (still) a major focus of several national courts and authorities within the European Union.” Marc Besen, Partner, Düsseldorf/Brussels

Laws catching unilateral conduct of non–dominant companies 

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It is widely known that companies – when deemed market dominant – must not abuse their market power, e.g. by discriminating between customers with different terms of sale or by setting prices with the intention of driving out a competitor (predatory pricing). It is important to note that in some countries such as Germany the same applies to companies which are not market dominant, but just relatively dominant vis-à-vis certain business partners. In the hotel booking platform case, for example, the Federal Cartel Office assumed this to apply to the most favoured customer clauses at hand – so precluding the benefit of the EU safe harbour for distribution arrangements (the Vertical Block Exemption Regulation), regardless of the parties’ market shares.

Our Insights into Global Antitrust Trends 2015

Restrictions on online reselling 

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The conditions set by manufacturers of branded goods for the online sale of their products by resellers, especially bans on sales via online marketplaces, are another current focus of authorities and courts. There seem to be divergent approaches among EU competition authorities. The strictest approach appears to be applied by the Federal Cartel Office which, for restrictions on the use of online marketplaces, takes the view that both the safe harbour rule set by the EU Courts for qualitative selective distribution systems and the Vertical Block Exemption Regulation do not apply, even where parties have low market shares.

Other potential pitfalls

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Depending on the circumstances, other vertical restrictions can raise problems:

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Exclusivity, or measures leading to factual exclusivity or a high quantitative degree of commitment, e.g. by a most favoured nation clause or by a loyalty/fidelity rebates system.

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“Hub & spoke” situations, i.e. where competition is restricted or sensitive information is exchanged, typically among competing resellers by communication via their common suppliers.

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Allocation of customers, restriction of territory or the channel(s) of distribution (e.g. online) or other restrictions on reselling.

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Selective distribution.

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Category management.

Tying or bundling products together such that customers may only purchase one product if it buys another or making it uneconomic for them to purchase the products separately.

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10

Cutting edge compliance The costly financial and reputational damage which often accompanies an antitrust law violation has made the implementation of a specific antitrust compliance programme a necessity for most multinational corporations.

Effective compliance programmes 

The mere implementation of an antitrust compliance programme is of little benefit unless it is effective. The ultimate aim of any such programme should be to ensure that antitrust compliance becomes integrated into a company's culture. This can be achieved by ensuring that ethical integrity and the promotion of fair competition is visible in every decision a company takes.

A top down approach 

While one element of an effective compliance programme is some form of antitrust training for employees, the Compliance Toolkit published by the International Chamber of Commerce describes various other compliance initiatives. These include ongoing, sustained and visible senior management commitment, wider management acknowledgment of antitrust as a business risk, whistle-blowing systems and the carrying out of compliance audits. More recent trends include the automatic review of emails by "intelligent" compliance software programmes.

Integration within a broader compliance programme 

Our Insights into Global Antitrust Trends 2015

Another recent trend amongst corporations has been the integration of antitrust compliance into other compliance programmes (e.g. anti-bribery and corruption programmes). As well as saving costs, this has the potential advantage of ensuring that consideration of antitrust requirements takes place both at the same time and as part of the same process as the evaluation of other established and accepted business risks.

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“Cutting edge antitrust compliance requires the use of a range of tailored tools. Programmes should be periodically reviewed to ensure that they reflect the most important antitrust risks facing the business, as well as the latest compliance technologies.”

“When imposing fines, antitrust authorities ought to distinguish between companies that have made substantial investments in their compliance programmes, and those that have shown little interest in fostering a compliance culture.”

Patrick Hubert, Partner, Paris

Jenine Hulsmann, Partner, London

Current and future challenges for effective antitrust compliance

Effect of compliance programmes on antitrust policy



The range of business practices which can give rise to antitrust law violations is not fixed. Over time, antitrust law has become more nuanced, with significant increases in both the number of business practices regarded as being potentially problematic, and the complexity of assessing compliance of those practices. Training employees on these antitrust subtleties can take up significantly more time and resources than those required for standard antitrust training.



The considerable cost of implementing and maintaining an effective antitrust compliance programme has resulted in calls for competition authorities to recognise these efforts formally when enforcing breaches of antitrust law. Many argue that in situations where companies’ employees have committed antitrust violations despite being provided with effective training and incentives to avoid such violations, it is unjust that the companies’ compliance efforts are not taken into account.



Antitrust compliance programmes must also be sufficiently flexible to take account of the variety of business situations that a firm may encounter. For example, if a company wishes to explore the potential of new markets by way of a joint venture with a competitor, sophisticated and well thought-out guidelines will be required. Such guidelines typically require employees to adhere not only to the required strict legal rules but also to more practical, non-legal rules designed by the corporation in question.





Further challenges present themselves in cases where multinational corporations wish to implement global antitrust policies and procedures. These must be sophisticated enough to take account of the significant variations in antitrust law between jurisdictions, while providing clear and unambiguous rules. Careful drafting is required to achieve both of these somewhat contradictory goals.

Competition authorities in some jurisdictions, notably the UK, Australia and France, have already taken steps to recognise the presence of an effective antitrust compliance programmes as a mitigating factor when calculating financial penalties applicable to antitrust violations. Whether other competition authorities will choose to follow their example is unclear. While many are no doubt eager to incentivise firms to implement effective compliance programmes, they may maintain that any reduction in a company’s accountability for the actions of its employees is something to be avoided.

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Sometimes, a company’s compliance initiatives can even work against it. For example, in its judgment in the Intel case, the EU General Court found that guidelines drawn up by Intel’s legal department to avoid the use of anticompetitive language in internal documents were evidence of its efforts to conceal its infringements.

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In any case, even if an effective compliance programme is treated as a mitigating factor in only a limited number of jurisdictions, it makes sense for companies to ensure that their compliance programmes meet, at the very least, the requirements of those jurisdictions.

Our Insights into Global Antitrust Trends 2015

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Online Services – Global M&A Toolkit Clifford Chance Global M&A Toolkit  



The essential interactive resource for anyone involved in M&A transactions. The Clifford Chance Global M&A Toolkit comprises a growing collection of web-based transaction tools, video content and in-depth analysis of the most important market and regulatory developments in M&A regimes across the globe. Available 24/7. Easy to access.

www.cliffordchance.com/GlobalM&AToolkit Global M&A Trends: Interactive investment flow maps 

Our interactive maps show current M&A flows into and out of each major investment region of the globe giving you insights into the latest trends in cross-regional M&A. The maps are easy to use, simple and effective. Available through the Global M&A Toolkit at:

www.cliffordchance.com/GlobalM&ATrends View from the top: A board-level perspective on current business risks 

This 2014 report from Clifford Chance is based on a global survey to assess boardroom attitudes to risk. In the aftermath of the global financial crisis, the survey of board members from across the world’s largest corporates explores which areas of risk feature at the top of board agendas, the extent to which boardlevel investment in risk management is paying off, and the depth of change required to ensure more robust risk management.

www.cliffordchance.com/GlobalRiskReport

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Global antitrust contacts Chair: Thomas Vinje Australia Dave Poddar T: +612 8922 8033 E: [email protected]

Belgium Tony Reeves T: +32 2 533 5943 E: [email protected]

Belgium Thomas Vinje T: +32 2 533 5929 E: [email protected]

China Richard Blewett T: +86 106535 2261 E: [email protected]

China Bai Yong T: +86 106535 2286 E: [email protected]

Czech Republic Alex Cook T: +420 222 555 212 E: [email protected]

France Emmanuel Durand T: +33 1 4405 5412 E: [email protected]

France Patrick Hubert T: +33 1 4405 5371 E: [email protected]

France Michel Petite T: +33 1 4405 5244 E: [email protected]

Germany Joachim Schütze T: +49 21 143 555 547 E: [email protected]

Germany Marc Besen* T: +49 21 143 555 312 E: [email protected]

Hong Kong Emma Davies T: +852 2825 8828 E: [email protected]

Hong Kong Angie Ng T: +852 2826 3403 E: [email protected]

Indonesia Linda Widyati T: +62 212 988 8301 E: [email protected]

Italy Luciano Di Via* T: +39 06 4229 1265 E: [email protected]

Japan Masafumi Shikakura T: +81 35561 6323 E: [email protected]

The Netherlands Steven Verschuur T: +31 20 711 9250 E: [email protected]

The Netherlands Frances Dethmers T: +32 20 533 5043 E: [email protected]

Poland Iwona Terlecka T: +48 22 429 9410 E: [email protected]

Romania Nadia Badea T: +40 21 66 66 100 E: [email protected]

Russia Torsten Syrbe T: +7 495 725 6400 E: [email protected]

Saudi Arabia Omar Rashid T: +966 11481 9720 E: [email protected]

Singapore Harpreet Singh Nehal T: +65 6661 2028 E: [email protected]

Singapore Nish Shetty T: +65 6410 2285 E: [email protected]

Singapore Valerie Kong T: +65 6410 2271 E: [email protected]

Spain Miguel Odriozola* T: +34 91 590 9460 E: [email protected]

Spain Miquel Montañá T: +34 93 344 2223 E: [email protected]

Thailand Andrew Matthews T: +66 2 401 8800 E: [email protected]

Turkey Itir Ciftci T: +90 212339 0077 E: [email protected]

Ukraine Ulyana Khromyak T: +380 44390 2219 E: [email protected]

United Arab Emirates Mike Taylor T: +971 4 362 0638 E: [email protected]

United Kingdom Alex Nourry T: +44 20 7006 8001 E: [email protected]

United Kingdom Jenine Hulsmann T: +44 20 7006 8216 E: [email protected]

United Kingdom Alastair Mordaunt T: +44 20 7006 4966 E: [email protected]

United Kingdom Elizabeth Morony T: +44 20 7006 8128 E: [email protected]

United Kingdom Greg Olsen T: +44 20 7006 2327 E: [email protected]

United Kingdom Matthew Scully T: +44 20 7006 1468 E: [email protected]

United Kingdom Luke Tolaini T: +44 20 7006 4666 E: [email protected]

United States Timothy Cornell T: +1 202 912 5220 E: [email protected]

United States Robert Houck T: +1 212 878 3224 E: [email protected]

* Marc Besen, Luciano Di Via and Miguel Odriozola split their time between office location indicated and Belgium.

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www.cliffordchance.com This publication does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. Clifford Chance LLP is a limited liability partnership registered in England & Wales under number OC323571. Registered office: 10 Upper Bank Street, London, E14 5JJ. We use the word ‘partner’ to refer to a member of Clifford Chance LLP, or an employee or consultant with equivalent standing and qualifications. © Clifford Chance, 2015

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