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Current issues in merger law

in Comparative Competition Law
Research Handbooks in Comparative Law series
John Duns, Arlen Duke and Brendan Sweeney (eds)

Julie Clarke
Edward Elgar, November 2015 (chapter 8, pages 171-218)

 

Publisher's description (book)

Comparative Competition Law examines the key global issues facing competition law and policy. Taken together, the specially commissioned, original chapters by leading writers from the United States, Europe, Japan, India, China, South America, and Australia provide a synthesis of how these current issues are dealt with by drawing on approaches taken in different jurisdictions.

 

Chapter extract

The globalization of markets, combined with the extraordinary expansion of merger control laws over the past two decades, has resulted in an increasing number of mergers inviting multiple regulatory responses. This has had a significant impact on the complexity, time and cost associated with transnational mergers and has highlighted the differences in law, policy and procedure employed by more than 70 jurisdictions now adopting targeted merger regimes. By contrast with other areas of competition law and policy, the treatment of mergers involves a significant regulatory component, with most jurisdictions adopting ex ante notification and suspension obligations for mergers exceeding defined thresholds. The justification for this lies in the structural change to the market affected by the merging of assets, personnel and intellectual property, which are difficult to reverse. However, ex ante regulation also has the consequence of subjecting the vast majority of benign or beneficial mergers to the cost and delay associated with administrative scrutiny. This cost and delay has the potential to jeopardize time-sensitive transactions or postpone expected efficiency gains. Where markets extend beyond domestic borders, these costs are multiplied and the slowest and most prescriptive jurisdiction will influence or determine the time at which the merger can close, if at all, and on what conditions.

 

Table of contents (book)

Part I: Introduction and Overview

1. Themes (John Duns, Arlen Duke and Brendan Sweeney)
2. The globalization of competition law: Yes or no? (Leela Cejnar and Rachel Burgess)

Part II: The Substantive Law

3. Defining and proving markets and market power (Rhonda L. Smith)
4. Anti-competitive agreements: The meaning of ‘agreement’ (George A. Hay)
5. Anti-competitive agreements: The range of conduct caught (John Duns)
6. Understanding market power (Alexandra Merrett)
7. Antitrust treatment of intellectual property rights (Michael A Carrier)
8. Current issues in merger law (Julie Clarke)
9. Vertical conduct: Non-price restraints (John Duns)
10. Vertical conduct: Resale price maintenance (Eugène Buttigieg)

Part III: Enforcement and Sanctions

11. Public enforcement (Arlen Duke)
12. Criminalizing cartels: A global trend? (Gregory C Shaffer, Nathaniel H Nesbitt and Spencer Weber Waller)
13. International governance of competition and the problem of extraterritorial jurisdiction (Brendan Sweeney)
14. Private antitrust enforcement: Comparative and policy considerations (Daniel A Crance, Keith Klovers and Adam Speegle)

Part IV: Competition Law in Selected Jurisdictions

15. Competition law in Japan (Simon Vande Walle and Tadashi Shiraishi)
16. Competition law in China (Wentong Zheng)
17. Latin American antitrust law and policy: An overview of three jurisdictions – Brazil, Chile and Colombia(Javier Tapia and Alexandre Ditzel Faraco)