The Internationalization of Merger Review: Extraterritoriality, Conflicts and Convergence
Jingyuan Ma
Lecturer in Law, Central University of Finance and Economics, Beijing, China
Please cite the paper as:
Jingyuan Ma, (2017), The Internationalization of Merger Review: Extraterritoriality, Conflicts and Convergence, World Economics Association (WEA) Conferences, No. 1 2017, Public Law and Economics, 1st June to 30th June, 2017
Abstract
Differences in the assessment standards and notification procedures of merger policy across jurisdictions impose substantial transaction costs on international business and commerce. In this paper, the issue of the internationalization of merger policy will be discussed by focusing on the extraterritorial applications, conflicts, and solutions provided by three important antitrust jurisdictions – the US, EU and China. Empirical studies on merger decisions in the US, EU and China shows that such difference may come from the higher, or lower standard in the analysis of merger effects, and the different priorities of competition goals by the antitrust authority. An international convergence in merger policy may face challenges because jurisdictions may easily incorporate non-economic goals, such as protecting domestic enterprises, when making decisions on transnational mergers. Since EU and the US proposed two distinct approaches on the internationalization of competition policy, and after the initiatives on creating a global antitrust legal framework failed, today’s antitrust world relies on bilateral agreements and multilateral cooperation through transnational networks. Technical assistance, experts’ working groups, and the use of “best practice” recommendations provide useful resources for antitrust agencies’ to enhance mutual learning. A global convergence in merger policy, although is difficult from the view of agreeing on one single text of global antitrust law, might be gradually achieved through the efforts by antitrust agencies across jurisdictions that improving their capacity, applying similar analytical tools, and harmonizing assessment procedure rules.
Dear Jingyuan Ma,
Thank you for your very interesting article about the internationalization of merger review systems. This is a hot topic and should be carefully discussed by academics and mainly competition authorities.
I tend to agree that the harmonization of systems is quite a challenge, that is why the bilateral or multilateral agreements (soft-laws) and also the international networks tend to be the best way of discussing these matters.
Please find below some very few comments that I hope will contribute to your research:
– You might considering adding to your paper more recent examples of international mergers and how the competition authorities interacted in those cases, as the cases you describe they are more from yearly 2000 and a lot have changed since then. In the past years, there were several interesting cases that could be better illustration of the current scenario (consider for example the SABMillerxAB InBev case, Ball x Rexam, Facebook x Whatsapp, among others).
– It wasn’t completely clear for me the role of Chinese law in your paper. I thought you would also focus on your country, but apparently you didn’t. You have mentioned the Chinese law in the section 2, but then you didn’t analyse it in the scenario of internationalization of merger. How does China fit in this scenario? Are there many agreements signed by the Chinese authority and the other authorities in the world? I am very curious about that, you should consider adding it to your paper.
Apart from that, you did a great job! Well done!
Your interesting paper shows the different approaches to the global competition policy agenda proposed by US and the EU. Considering the near future, which changes in this agenda could emerge in the context of Trump’s administration?
Dear Jingyuan Ma,
This was an interesting paper on an important topic. I just have some comments. First, for the options discussed here, which ones are more apt for developed, and for developing countries? For example, will harmonization be problematic for less developed countries? And second, it would be enlightening to have some discussion of the experience under bilateral agreements. Are these effective? Has any country denied enforcement of competition judgments despite the presence of these bilateral agreements?
Thank you, Gemelee, for the very inspiring advice. When I wrote the paper, I had much more useful materials on the bilateral agreements and harmonization issue between EU and the US, so I did not focus on the situation in developing countries. It would be a better structured paper, as you suggested, to discuss the challenges for developing countries, and to give more examples on the enforcement of competition law under bilateral agreements. I will think about it. Thank you.
Dear Jingyuan
You are certainly dealing with an ambitious topic. I think you might find useful material on the website of the International Competition Network which is a most active network albeit without the participation of China
best wishes
Thank you very much, Mary. Yah I agree, some of the information needs to be updated, and ICN website is indeed very helpful.