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Mergers: Reports

 

Australia: Key reports

Swanson Committee 1976

The Swanson Committee consdiered that the merger law, as originally enaged, was too 'sweeping' in its application. It recommended a threshold test for application of the provision (to be initially set at $3m). Although this change was not brought in, the Act was amended in 1977 and converted the original

Griffiths Committee 1989

In 1989, the House of Representative Standing Committee on Legal and Constitutional Affairs (the Griffiths Committee) recommended retaining the dominance test in its report ‘Mergers, Takeovers and Monopolies: Profiting From Competition?’. However, no such change was introduced.

Cooney Committee 1991

In 1991, the Cooney Committee recommended a substantially lessen competition test. The Cooney Committee recommendation resulted in legislative change in 1992, returning the test to one of 'substantial lessening of competition' and introducing a non-exhaustive list of matters the Court must consider in making this assessment (s 50(3))

Review of draft merger guidelines 1998

Ahead of the publication of the 1998 Merger Guidelines (now replaced by 2008 Guidelines) a review was conducted by the Industry Commission. See:

External linkMerger Regulation: A review of the draft merger guidelines administered by the Australian Competition and Consumer Commission (1996)
Report of the Industry Commission

Dawson Committee 2003

In 2002, numerous submissions were made to the Dawson Committee recommending that the substantive test for mergers change back to one of dominance, incorporate an ‘efficiency’ test or incorporate a public benefit test. The Dawson Committee recommended that the substantive test of ‘substantial lessening of competition’ be retained and this was accepted by the government.

Procedurally, the Dawson Committee made recommendations relating to merger clearance and authorisation processes which came into effect in 2007. In particular, the power to hear merger authorisation claims at first instance moved from the ACCC to the Tribunal and a formal merger clearance process was introduced, to operate in parallel with the successful informal process.

See Dawson Committee Report - Chapter on Mergers (2003)

Harper Report 2015

In 2014-2015 an independent review of Australia's competition law and policy (the Harper Review) recommended that the current substantive test for mergers be retained. However, it made significant recommendations in relation to process; in particular, it recommended combining the formal clearance process and the authorisation process (retaining the informal process) and giving the power back to the ACCC to make a determination on formal applications at first instance. The Government accepted these recommendations in 2015 and has indicated it will develop exposure draft legislation for public consultation in 2016.

See my overview of the Harper Review final proposals (PDF).

 

Other jurisdictions

Canada

Europe

New Zealand

United Kingdom

External linkOFT/CC Review of Merger Guidelines (initiated 2008; includes links to Guidelines)

United States

On merger guidelines

External linkPre-Merger/Hart-Scott-Rodino Act (resources from FTC)

 

International reports and recommendations

International Competition Network (ICN)

Recommendations

External linkICN Guiding Principles for Merger Notifcation and Review
Adopted at 2002 Annual Conference (First Annual Conference, Naples, Italy, 28-29 Sept 2002)

External linkICN Recommended Practices for Merger Notification and Review Procedures
Adopted at First Annual Conference, Naples, Italy (September 28-29, 2002). Revised and/or comments added: Second Annual Conference, Mérida, Mexico (June 23-25, 2003); Third Annual Conference, Seoul, Korea (April 21-22, 2004); Fourth Annual Conference, Bonn, Germany (June 5-8, 2005); Fifth Annual Conference, Cape Town, South Africa (May 3-5, 2006)

External linkICN Recommended Practices for Merger Analysis
Adopted at Seventh Annual Conference, Kyoto, Japan (April 14-16, 2008). Revised Eighth Annual Conference, Zurich, Switzerland (June 3-5, 2009) and Ninth Annual Conference, Istanbul, Turkey (April 27-29,2010)

Reports

External linkICN Merger Working Group Interim Report on the Status of the International Merger Enforcement Cooperation Project (13th Annual Conference, Marrakech, April 2014)

External linkMerger Working Group Comprehensive Assessment 2010-2011
The Merger Working Group, 10th Annual Conference of the ICN, The Hague, Netherlands, May 2011

External linkICN Information Requirements for Merger Notification (June 2009)
Prepared by the Notification & Procedures Supgroup and presented at the 8th Annual Conference, Zurich, Switzerland, June 2009

External linkSetting Notification Thresholds for Merger Review
Seventh Annual Conference,Kyoto, Japan, 14-16 April 2008

External linkDefining Merger Transactions for Purposes of Merger Review (2007)
Presented at Sixth Annual Conference, Moscow, Russia (May-June 2007)

External linkMerger Remedies Review Report
From the Fourth Annual Conference, Bonn, Germany (June 2005)

External linkICN Implementation of the ICN Recommended Practices for Merger Notification (April 2005)

External linkICN Merger Notification Filing Fees (April 2005)
Developed by Merger Notification & Procedures subgroup - report (27 pages) discusses the various types of filing fee regimes.

External linkICN Merger Remedies Review Report (June 2005)
Developed by ICN Merger Working Group: Analytical Framework Subgroup for the fourth ICN annual conference, Bonn (59 pages)

External linkICN Report on the Costs and Burdens of Multijurisdictional Merger Review (November 2004)
Prepared by Mergers Working Group: Notification and Procedures Subgroup (26 pages)

External linkICN Report on Merger Guidelines (April 2004)
This links to the overview chapter of the Project on Merger Guidelines prepared by the ICN Merger Working Group: Analytical Framework Subgroup for the third ICN annual conference in Seoul. Other chapters are: External linkMarket Definition, Unilateral effects, Coordinated Effects, Barriers to entry and expansion and Efficiencies.

External linkICN Merger Investigative Techniques Compendium of Investigative Tools
Report setting out results from a 2002 questionnaire submitted to ICN members - second annual conference, Merida, Mexico (June 2003)

External linkNGA Report on Implementation of ICN Recommended Practices for Merger Notification Procedures
Analyses from a survey of agencies and private practices how recommended practices on notification procedures are implemented.

External linkNGA Survey - Jurisdictional Matrix of Merger Laws

External linkICN The Analytical Framework for Merger Control 2002
Discussion paper produced for First Annual Conference, Naples, Italy (28-29 September 2002). Related the this, the following country exemplars were produced:

External linkAustralia Exemplar - Allan Fels, Merger Law in Australia (11 September 2002)

External linkGermany Exemplar (Bundeskartellamt)

External linkSouth Africa Exemplar

External linkUnited States Exemplar

External linkICN Framework for Merger Review Cooperation
Document undated, but uploaded to ICN site 12 June 2012

External linkICN Model Confidentiality Waiver (Mergers) (Discussion Paper)
Developed by Merger Notification & Procedures subgroup. Iillustrative agency waiver forms.

OECD

OECD Reports

External linkOECD 2013 Report on the OECD/ICN Survey on International Enforcement Cooperation
DAF/COMP/WP3(2013)2, Working Party No 3 on Co-operation and Enforcement. 26 February 2013. See also Executive Summary of the Report.

External linkOECD 1999 Report on Positive Comity

External linkOECD 1999 Report on Notification of Transnational Mergers

The Wood-Whish Report - Merger Cases in the Real World: A Study of Merger Control Procedures (OECD, 1994)

OECD Policy Roundtables

External linkOECD Competition Policy Roundtables

External linkOECD, 'Jurisdictional nexus in merger control regimes' (Rountable to be held in June 2016)

External linkOECD, 'Investigations of consummated and non-notifiable mergers' (2014) (Executive summary: DAF/COMP/WP3/M(2014)1/ANN3/FINAL 11 March 2015)

External linkOECD, 'Definition of Transaction for the Puprose of Merger Control Review' (DAF/COMP(2013)25 (24 Jan 2014))

External linkOECD Policy Roundtables: The Role of Efficiency Claims in Antitrust Proceedings DAF/COMP(2012)23 (2 May 2013)

External linkOECD Policy Rountables: Market Definition (2012) DAF/COMP(2012)24 (11 October 2012)

External linkOECD Policy Rountables: Impact of Evaluation of Merger Decisions (June 2011) DAF/COMP(2011)24 (18 September 2012)

External linkOECD Policy Roundtables: Economic Evidence in Merger Analysis DAF/COMP(2011)23 (27 July 2012)

External linkOECD Policy Roundtables: Remedies in Merger Cases DAF/COMP(2011)13 (30 July 2012) (Roundtable No 125)

External linkOECD Policy Roundtables: Cross-Border Merger Control: Challenges for Developing and Emerging Economies DAF/COMP/GF(2011)13 (2011) (Roundtable No 122)

External linkOECD Policy Roundtables: Failing Firm Defence (DAF/COMP(2009)38) (2009) (Roundtable No 103)

External linkOECD Policy Roundtables: The Standard for Merger Review, with a Particular Emphasis on Country Experience with the change of Merger Review Standard from the Dominance Test to the SLC/SIEC Test (DAF/COMP(2009)21) (2009) (Roundtable No 102)

External linkOECD Policy Roundtables: Competition Policy, Industrial Policy and National Champions (DAF/COMP/GF(2009)9) (2009) (Roundtable No 96)

External linkOECD Policy Roundtables: Managing Complex Mergers (DAF/COMP(2007)44) (2007) (Roundtable No 83)

External linkOECD Policy Roundtables: Dynamic Efficiencies in Merger Analysis (DAF/COMP(2007)41) (2007) (Roundtable No 77)

External linkOECD Policy Roundtables: Vertical Mergers (DAF/COMP(2007)21) (2007) (Roundtable No 68)

External linkOECD Policy Roundtables: Merger Remedies (DAF/COMP(2004)21) (2004) (Roundtable No 48)

External linkOECD Policy Roundtables: Media Mergers (DAFFE/COMP(2003)16) (2003) (Roundtable No 44)

External linkOECD Policy Roundtables: Substantive Criteria Used for the Assessment of Mergers (DAFFE/COMP(2003)5) (2003) (Roundtable No 42)

External linkOECD Policy Roundtables: Merger Review in Emerging High Innovation Markets (DAFFE/COMP(2002)20) (2002) (Roundtable No 20)

External linkOECD Policy Roundtables: Portfolio Effects in Conglomerate Mergers (DAFFE/COMP(2002)5) (2001) (Roundtable No 37)

External linkOECD Policy Roundtables: Mergers in Financial Services (DAFFE/CLP(2000)17) (2000) (Roundtable No 29)

External linkOECD Policy Roundtables: Airline Mergers and Alliances (DAFFE/CLP(2000)1) (2000) (Roundtable No 26)

External linkOECD Policy Roundtables: Efficiency Claims in Mergers and Other Horizontal Arrangements (OCDE/GD(96)65) (1995) (Roundtable No 4)

External linkOECD Policy Roundtables: Failing Firm Defence (OCDE/GD(96)23) (1995) (Roundtable No 2)