Antitrust

7 2 AUSTRALIA In 2018, the Australian Competition & Consumer Commission (ACCC) has shown that it will not shy away from difficult cases such as bringing criminal cartel charges and investigating gun-jumping. Australia has expanded the scope of the cartel joint venture exception. A joint venture in this sense does not have the same meaning as a corporate JV, but relates to two companies coming together to jointly carry out an activity relating to the production, supply or acquisition of goods or services regardless of whether or not they are in a partnership together or in the same corporate structure. The exception, allowing for restrictions to be agreed between competitors if it is specifically for the purposes of the joint venture, is reasonably necessary and does not lead to a substantial lessening of competition. Financial services remains a hot topic for antitrust regulators worldwide and the ACCC is no different. Australia has brought criminal cartel prosecutions against a number of banks and six executives for involvement in a A$2.5 billion capital-raising. The investigation focuses on banks which jointly underwrote an Australia and New Zealand Banking Group (ANZ) capital- raising back in 2015. The investigation into the syndication centers around the allegation that the joint lead managers reached an understanding in relation to the supply of ANZ shares. The investigation is still at the early stages, but the decision to pursue criminal charges is interesting given that these are harder to bring and still rare in Australia. This case is also cutting-edge as Australia is one of the first countries in the world (after Spain) to bring a case investigating syndication. In Australia, the merger regime is voluntary and non-suspensory, which means that it is for the parties to decide whether or not to make a filing, and parties are free to close the transaction without competition approval. Nevertheless, the ACCC is investigating 'gun-jumping' where Cryosite and Cell Care allegedly stopped acting as independent competitors prior to completion of the deal by allocating customers between themselves. This shows that despite having a voluntary regime, the ACCC will still take gun- jumping action against parties that act as though they have merged prior to completion of the deal. BRAZIL Brazil's Administrative Council for Economic Defense (CADE) continues to be a leading enforcer of competition law as demonstrated by its recognition in 2018 as Agency of the Year in the Americas by the Global Competition Review, the fourth time the enforcement agency has received this distinction. COMPLIANCE 13 T H E A C C C H A S S H O W N T H A T I T W I L L N O T S H Y A W A Y F R O M D I F F I C U LT C A S E S S U C H A S B R I N G I N G C R I M I N A L C A R T E L C H A R G E S A N D I N V E S T I G A T I N G G U N - J U M P I N G The Antitrust Arms Race: How International Jurisdictions Are Increasing Enforcement Efforts

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