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Antitrust / Competition


Two years ago, on 5 November 2019, the Department of Justice (DOJ) announced the formation of the Procurement Collusion Strike Force (PCSF). DOJ press releases indicated the purpose was to create a joint, collaborative interagency partnership focused on deterring, detecting, investigating, and prosecuting antitrust crimes. The Strike Force has prosecutors from 22 US Attorneys’ Offices and 7 national law enforcement partner agencies, including the Antitrust Division of the DOJ, investigators from the Federal Bureau of Investigation, and the Inspectors General for multiple Federal agencies. To date, the PCSF is active in almost a quarter of US judicial districts and coordinates with many US agencies and offices.

In April, Royal Decree-Law 7 of 27 April 2021 was passed. It introduced major amendments to Royal Legislative Decree 1 of 16 November 2007, approving the revised text of the General Consumer and User Protection Act and other supplementary acts, which we analysed in our May newsletter.

Through Baker McKenzie’s participation in the World Economic Forum project; Unlocking Value of Data Sharing we have learnt that whilst many companies may have a good grasp of unlocking value from their internal data, that the legal risks of data use and sharing are not widely understood or on the radar of decision takers. Moreover, there can be a gap between the business/technology team and the legal function.

Draft guidelines to the COMESA Competition Regulations, 2004 were published for public comment in October 2021. The guidelines are intended to provide clarity, transparency and certainty on the policies and procedures of the COMESA Competition Commission. Based on international best practice, they address the determination of fines and administrative penalties, as well as settlement and hearing procedures.

The wide-ranging proposed amendments to China’s Antimonopoly Law (AML) (“Proposed Amendments”) were published for public comments immediately after being presented to China’s top legislature for the first reading. It is clear from the Proposed Amendments that China intends to continue to strengthen antitrust enforcement.

Australia’s competition regulator has argued for sweeping reforms to impose significantly higher barriers to proposed mergers. The Australian Government treasury also released an exposure draft on 23 August 2020 detailing a range of proposed reforms to the unfair contract terms regime, including pecuniary penalties on companies and individuals. Nero Tapware admitted it likely engaged in RPM by withholding supply of its products to a small retailer that failed to increase prices. The ACCC has reiterated the need for additional regulation to address its concerns about the dominance of digital platforms.

The local antitrust regulator’s recent fine of USD 45.62 million on an electrical product manufacturer follows SAMR’s record USD 117 million fine for RPM earlier this year. SAMR also continues to actively enforce failure-to-notify/gun-jumping violations, imposing 24 penalty decisions over Q3 of 2021. The authority may be contemplating addressing illegal price-related behaviours under the Pricing Law, in addition to the Anti-monopoly Law.

This series of ESG-focused thought leadership webinars will share insights and practical guidance for businesses considering what ESG means for them in the context of the current crisis and beyond. For the 21 October 2021 Special edition, Caitlin McErlane, Ilona Millar and Graham Stuart speak on “Setting the scene – what does the forthcoming COP26 mean for you and your business?”

Following this year’s Baker McKenzie Annual Compliance Conference, we are pleased to invite you to our Wrap Up Session on November 3 at 3.00 – 4.30 GMT. The session aims to bring together the key learnings, take-aways and recommendations from the conference. Representatives will attend from the five key compliance areas covered in the conference: antibribery and corruption, antitrust compliance, customs, supply chain, ESG compliance, export controls and sanctions.