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Let's talk antitrust: Discussing recent cases and emerging competition issues
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Welcome to the latest edition of Corporate and commercial disputes review in which we examine key developments that are likely to affect our corporate clients.
Contractual disputes and important decisions of the Supreme Court feature heavily in this edition. We examine the Supreme Court’s landmark decision on penalties as well as two other Supreme Court decisions dealing with contractual interpretation. We also analyse the Supreme Court’s decision on the rule that directors must only exercise powers for the purposes for which they were conferred.
Moving away from the Supreme Court, we look at a decision of the High Court as to whether the doctrine of repudiatory breach applies to LLP agreements, and review the Court of Appeal decision in a case addressing the effect of surreptitious dealing by a contractual counterparty.
In other areas affecting companies, we look at the arguments surrounding the possibility of a corporate criminal code in Germany; consider the limitation issues surrounding the restoration of a company to the register; analyse issues concerning data subject access requests and their use as a litigation weapon; and note an important decision on the use of predictive coding in the context of electronic disclosure.
Finally, we navigate questions of privilege in global investigations.
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Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Publication
After a lacklustre finish to 2022 when compared to the vintage year for M&A that was 2021, dealmakers expected 2023 to see the market continue to cool in most sectors, in response to the economic headwinds of rising inflation (with its corresponding impact on financing costs), declining market valuations, tightening regulatory scrutiny and increasing geopolitical tensions.
Publication
On 18 September 2023, the CMA published its Initial Report (Initial Report) on AI Foundation Models (FM), supplemented in April 2024 with the publication of its “Update Paper” focused on potential antitrust risks associated with FMs and a “Technical Update Report” providing more detail on the development on FMs (collectively the “Reports”). Below, we consider these CMA publications.
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