Businesses face increasing pressure from their investors, customers, employees, regulators, and other stakeholders to promote their ESG goals in the transition to a more sustainable economy. Many businesses look to effect more impactful changes by addressing systemic issues through collaboration with other participants in their industry. This, however, creates risks that require careful management to avoid running afoul of competition laws.
Many competition enforcers have provided guidance to help companies resolve this tension and encourage lawful collaboration at the industry level, but others have recognized that there is no sustainability exception to antitrust laws and declined to provide guidance to help businesses navigate the intersection of ESG and competition laws. Still others have threatened and even initiated enforcement action against “climate cartels” on theories that sound in antitrust law.
Businesses engaged in ESG and sustainability efforts need to keep up-to-date with the changing enforcement and regulatory landscape, understand the growing body of guidance across jurisdictions, and distinguish the reality from the rhetoric of some enforcers to fully understand their antitrust risks and ensure that they remain compliant with competition laws.
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As previously observed, conflicts occasionally arise between mortgagees and charterers where a mortgagee wishes to take prompt action to enforce its rights, but the charterer wishes such enforcement action to be deferred until the end of the charter.
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For some time now, the European Commission (EC) and national competition authorities (NCAs) have been striving to catch so-called “killer acquisitions” under their merger control rules to thereby close a perceived enforcement gap.
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