Future Trends - the Internationalization of Antitrust Law


Future Trends the Internationalization of Antitrust Law

There have been many changes in antitrust law over the last decade . Many of those changes will continue and will likely affect businesses that come into contact with the antitrust authorities. Perhaps the most significant trend is the internationalization of antitrust. Nearly one hundred countries now have antitrust regimes and scores have some sort of merger filing requirements similar to our Hart-Scott-Rodino rules. That degree of merger control did not exist in any meaningful way fifteen years ago outside of the European Union, a couple of Western European countries , Canada, and the United States.

Now, when a client does a transaction, even if it appears to be entirely a domestic U.S. transaction, consideration must be given to the potential need to obtain merger clearance in the European Union, specific European countries, South America, Eastern Europe, Asia, and Africa.

In addition to different procedural merger clearance regimes, the different competition agencies frequently apply different substantive tests in their merger reviews. This, along with the fact that the markets and competitive realities may differ between countries, may lead to different results by different merger control authorities over the same merger. The best known example of this phenomenon is the GE-Honeywell merger which was cleared in the U.S., but blocked by the European Commission.

The complexity of obtaining multiple merger clearances under different merger review regimes, in countries with different merger review standards, converts the merger review process for cross-border transactions into a game of three-dimensional chess. This trend, which will likely continue, puts a serious burden , in terms of both time and resources, on parties trying to complete transactions. At some point there will be great pressure put on the merger control agencies to coordinate and unify at least some parts of their merger regimes. This may become a significant trend in the future.

Beyond the merger front, the internationalization of antitrust has other ramifications for the operations of international businesses. Many firms are learning, for example, that practices that are lawful in the U.S. may not be so in the EU. This applies to distribution restraints and intellectual property licensing. As a result, a client may find that key elements of its business model, which are lawful in the U.S., are not in various foreign countries. This may require a client to make significant changes to its business approach on a country-by-country basis. As the world economy becomes more globalized, it can be expected that these national differences in antitrust law will become an increasing burden on business.




Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
ISBN: N/A
EAN: N/A
Year: 2004
Pages: 102

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