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Clarke, Julie --- "Current issues in merger law" [2015] ELECD 1288; in Duns, John; Duke, Arlen; Sweeney, Brendan (eds), "Comparative Competition Law" (Edward Elgar Publishing, 2015) 171

Book Title: Comparative Competition Law

Editor(s): Duns, John; Duke, Arlen; Sweeney, Brendan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804196

Section: Chapter 8

Section Title: Current issues in merger law

Author(s): Clarke, Julie

Number of pages: 48

Abstract/Description:

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.