In brief

COVID-19 has thrust much of the business world into a universe of unprecedented uncertainty. This poses significant challenges for many businesses, but it also presents opportunities. In a new series, DealMaking in a Virtual World, Lerisha Naidu and Ryan McKerrow from the Johannesburg Competition & Antitrust Practice Group, outline the Competition Law perspective on virtual dealmaking.


With the COVID-19 pandemic giving rise to state-mandated lockdowns, social-distancing regulations, and increased hygiene vigilance across the globe, not to mention its direct implications for global health, much of the business world has been thrust into a universe of uncertainty. With the economic effects of the virus, at both macro and micro levels, being in a constant state of flux, market responses are largely unpredictable. This, of course, poses significant challenges for many businesses and their stakeholders; but it also presents opportunities. One need only look to the recent share price trends in the media services and communications technology spaces to see that it is not doom and gloom for all businesses across the board. While some, indeed, will benefit simply from increases in demand spurred by the pandemic-related restrictions, others, in true Darwinian fashion, will thrive by adapting to change.

Adaptability in legal services

With adaptability being key to success, businesses need to ensure not only that their internal operations are sensitive to change and nimble in responding, but also that their service providers are equally equipped to navigate an unpredictable terrain. Rarely is this more important than it is in respect of legal services provided to businesses, where effective and efficient structuring, regulatory approval, and satisfaction of legal and contractual requirements can make or break a deal.

With law being steeped in tradition and bound by precedent, adaptability has been somewhat of a foreign concept to the legal industry. However, great strides have been made by those law firms that see change as an ally rather than an adversary and embrace the notion of deal-making in a ‘virtual world.’ Supported by technology and a drive to innovate by necessity, ‘law firms of the future’¬†harness both their existing virtual capabilities and new ideas to ensure that they not only continue to meet their clients’ needs, but that they do so more efficiently than ever before.

A crucial factor driving efficiency in what is becoming an increasingly connected world, is the ability to work seamlessly across geographies. With this as well as the pandemic-related restrictions in mind, progressive law firms are adopting agile approaches to working arrangements. Teams meet regularly with each other, their expert consultants and their clients through telephone and video conferencing. They also make use of technology-enabled platforms to coordinate and track workflow. Moreover, with real-time engagements being the preferred mode of interaction, they remain constantly connected and in tune with project dynamics.

A virtual approach to competition law

The Competition Commission in South Africa is renowned as one of the most active regulators on the continent. Accordingly, competition law compliance is essential for businesses operating in, or producing effects in, South Africa. Those businesses implicated in the recent spate of COVID-19-related excessive pricing complaints brought by the Commission can attest to this. And with indications that competition authorities across the globe are preparing for an uptick in collusive practices as a predicted response to a challenging economic environment, competition law compliance is necessary perhaps now more than ever. Law firms will therefore be increasingly called upon to provide clients with high quality and dependable competition law support. This call must, of course, be answered within the framework of our new, virtual, reality.

Compliance training and advisory solutions

To ensure that businesses are adequately equipped to deal with an actively-regulated competition law environment, tailored virtual training programs will need to be rolled out, creating awareness among key employees of compliance risks and the steps necessary to mitigate them. Law firms will also need to continue providing their clients with advisory support on all competition-related issues, with a particular emphasis on those arising from changing economic circumstances.

Merger control

In merger work, law firms are already engaging with the Competition Commission on a virtual basis: pre- and post-merger consultations are carried out telephonically and by video conferencing; analyses are facilitated by virtual data rooms; and merger notifications and follow-up submissions are processed electronically. In the case of large mergers, which are considered by the Competition Tribunal, physical hearings are no longer the order of the day, with proceedings now being conducted by way of web-based video conferencing.

Prohibited practices

In respect of complaint proceedings, parties are able to serve pleadings electronically. Additional trial documents may also be shared with the Commission and the Tribunal electronically. As alluded to above, hearings before the Tribunal are already being conducted virtually, and on the basis of this progressive precedent, it is expected that appeals before the Competition Appeal Court will soon follow suit. Remote hearings will be particularly welcomed in respect of proceedings before the Appeal Court, which have in the past been heard in Cape Town, despite the Commission and the Tribunal being situated in Pretoria and respondents more often than not being situated outside of the Western Cape.

Looking forward

Most importantly, law firms will need to keep an eye on the horizon, constantly looking for new ways to support their clients. As a case in point, recent reports from abroad indicate that the competition authorities are now using data mining, algorithms and machine-learning as tools for identifying competition law infringements and mounting cases against respondent firms. Dynamic law firms will respond to such threats by harnessing these and other technologies to improve compliance efforts and to defend prosecutions.

Conclusion

With modern business being characterized by an ever-shifting environment, such that change really is the new normal, there is an increased need for law firms to be versatile in their ways of thinking and working. Those that embrace change are more likely to survive, and indeed thrive, while those that remain static will certainly fare less well.