Extraterritorial Merger Control Enforcement in Small Economies? Challenges and Possibilities

Author:Katri Paas-Mohando
Pages:137-146
 
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137
JURIDICA INTERNATIONAL 21/2014
Katri Paas-Mohando*1
PhD, Adjunct Lecturer, University of Tartu
Senior Associate at LAWIN Tallinn
Extraterritorial Merger
Control Enforcement in Small
Economies—Challenges
and Possibilities
1. Introduction
It has been widely acknowledged that, while mergers of undertakings can expand markets and bring ben-
e ts to the economy, some mergers may reduce competition to an undesirable extent. Therefore, many
states, around the globe, have enacted merger control regimes to prevent the emergence of anti-competitive
market structures. It is typical that merger control rules require that merging parties notify a competi-
tion authority of their transactions before their implementation, whereupon the authority may prohibit the
merger or impose conditions on the merging parties if the merger causes competition concerns.
In principle, any state may require the noti cation of whichever mergers it wishes (whether domestic
or involving foreign undertakings) or prohibit the same. States may also take enforcement actions within
their boundaries, but their orders with respect to foreign undertakings generally remain ‘toothless’ abroad,
where no mechanism for enforcement can be applied. Hence, exercising effective control over extra-
territorial mergers poses challenges to all states.
From the perspective of national competition authorities, four types of merger situations can be dis-
tinguished: i) domestic mergers, wherein all rms concerned have their seat within the state of the author-
ity; ii) foreign mergers, wherein the rms concerned have their seat in one and the same foreign state; iii)
international mergers, wherein one of the rms concerned is foreign and the other has its seat in the state
of the authority; and iv) foreign international mergers, wherein the companies concerned have their seat in
two (or more) foreign states.*2
S mall economies are confronted with foreign, international, and foreign international mergers more
often than are larger economies.*3 At the same time, their power of enforcement, to give effect either to their
1 The article is based on the author’s doctoral thesis Implications of Smallness of an Economy on Merger Control, available
at http://dspace.utlib.ee/dspace/bitstream/handle/10062/10282/Paaskatri.pdf?sequence=1 (most recently accessed on
23.5.2014). The author thanks Michal S. Gal, Rosa Greaves, and Michael Steinicke for their useful comments and Paul Varul
and Olav Kolstad for excellent supervision. All errors and omissions remain my own.
2 Walter A. Stoffel. International mergers: Merger in small economies. – Annual Proceedings of the Fordham Competition
Law Institute: International Antitrust Law & Policy, Fordham Competition Law Institute, Juris Publishing, Inc. 2007,
p. 323.
3 Ibid., p. 323.
http://dx.doi.org/10.12697/JI.2014.21.12

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