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A more efficient use of efficiencies in merger authorisation determinations

Arlen Duke
(2007) 35 Australian Business Law Review 278 - 292
U of Melbourne Legal Studies Research Paper No. 468

 

Abstract

'This article considers the varying treatment of merger-related efficiencies in overseas jurisdictions and in Australian and New Zealand merger authorisation and clearance determinates. This analysis leads to the conclusion that the inclusion of an efficiency defence in the legislative regime that regulates the competitive effects of mergers tends to cause decision-makers to adopt a less sophisticated approach when assessing the competitive effects of merger activity. It is therefore argued that the Australian Competition Tribunal, the body now responsible for determining authorisation applications, should be alert to the fact that the effects of merger-related efficiencies are relevant to both the assessment of public benefits and public detriments. By considering the competition and resource saving effects of merger-related efficiencies separately, the tribunal will be better placed to assess the merger’s effect on competition and perform a more meaningful trade-off between competition and efficiency as part of its analysis of merger authorisation applications. '

 

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