M&A is top of mind: Will dealmakers actually double down in a downturn? The digital revolution could fuel “shadow protectionism”

White & Case LLP

White & Case LLP Digital drives deals in every sector, ensuring tech is a primary focus of M&A across the board—even as data challenges multiply

Some say every deal is a tech deal now. Not quite, but the point is well taken. Respondents to our survey rank "the need to acquire a new technology" as the second most important driver of M&A in 2020, behind "a healthy financing environment."

Sixty-five percent are looking to acquire or merge to enhance their technology capabilities in the next year. The figure is 76 percent in banking and financial services and 71 percent in pharmaceuticals and healthcare. Nearly 80 percent of non-tech companies expect to spend more than 20 percent of their M&A budgets on acquiring tech.

Companies in every sector are being challenged to digitize and automate their operations—and provide digital and automated services to their customers. This is now true even in sectors such as manufacturing and industrials where digitization has traditionally been less important. And M&A is the fastest way to gain new competencies or technologies.

"Sometimes companies need to recognize that things are just going to take a long time to develop organically, and as a result they need to make an inorganic investment to jump the S-curve," says James Down, General Counsel, Corporate at Smiths Group, a UK-based diversified engineering company. "Often that is a driver for M&A, whether that involves outright acquisitions or minority investments with a path to control, and digital solutions are increasingly at the heart of those decisions."

In financial services, digitization is driven by the transition to 5G and the rise of app-based banking (including the inexorable trend toward cashless and cardless payments—which is already ubiquitous in parts of Asia). AI and machine learning are increasingly important, too. But cultural differences between banks and nimble tech companies can make M&A difficult.

In pharma and healthcare, companies now have sufficient tech in place and data on hand to enable true predictive and prescriptive healthcare. The trends toward digital health records and wearables continue unabated. And in some situations, AI can help to make computers better at diagnosis than doctors.

"Telehealth and telemedicine are areas of focus, but they are very driven by regulation," says a senior executive at a large US healthcare company." If there's regulatory change that clarifies the payment structure for those services— particularly if the government starts paying for it—it will be a huge growth sector."

Data is at the center of the digital revolution. But the rules about what's acceptable when it comes to data use in the digital era are just beginning to take shape. This presents serious challenges for every company, particularly those that deal with personal data.

"You're either dealing with employee data, or customer data, or end-user data, sometimes even business data, and you want to make sure that you fully understand any compliance requirements that you're acquiring," says Kelby Barton, General Counsel of Avast, the Czech cybersecurity software company.

And some of the biggest fault lines trace international and cultural boundaries.


Digital standards and shadow protectionism

Different cultures have different norms about data use, particularly when it comes to privacy. Expectations about privacy in Europe, for example, may differ dramatically from expectations in Asia—and that is reflected in how companies and governments collect and use data, and how data use is regulated.

The trend could lead to something like shadow protectionism, whereby economic activities are effectively limited to certain spheres depending on the participants’ political and cultural commitments

Added to this is the concern in some countries that data flows could be harmful to their societies by facilitating trade in goods or services that the respective governments wish to control.

There's an impulse to manage these types of cross-cultural differences by trying to keep data within national or regional borders. Such developments could contribute to the emergence of parallel digital universes around the globe, with the US and China representing two of the most prominent models for how different ecosystems could evolve.

"I don't think the pendulum is going to swing the other way on data privacy and protection," says Barton. "It's going to keep going in the direction it's going. As it relates particularly to China and the US, I don't know how that will resolve itself."

The trend could lead to something like "shadow protectionism", whereby economic activities are effectively limited to certain spheres depending on the participants' political and cultural commitments. One could imagine Western and Eastern spheres that were limited in their abilities to communicate or transact with one another.

Ideally, international standards would eventually be established to harmonize laws about data use across countries and cultures, facilitating cross-border communications and transactions. In the 19th century, the Berne Convention established international standards for copyright that still serve the world well today. But countries were not nearly as different in their approaches to copyright prior to the Berne Convention as they may be regarding data use today.

Modern trade agreements have recently begun to commit signatories to a relatively free flow of data across borders and prohibit data localization requirements. But there are only a few agreements that contain commitments of this sort—and, as always, exceptions apply, including those related to national security.

This could become a major factor in how technology ecosystems and markets develop in the future— one that could have tremendous implications for M&A, not to mention geopolitics and the global economy.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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