Multijurisdictional Merger Filings

Originally published November 21, 2011

Keywords: multijurisdictional merger filings, cross-border mergers, antitrust reviews, filing requirements, merger control laws

Cross-border mergers frequently trigger pre-closing antitrust reviews. Such reviews are complex and can be fraught with risk. With more than 90 countries now having obligatory premerger filing requirements, different substantive and procedural regimes can make a multijurisdictional transaction an expensive and time-consuming process.

It is common these days, in both developed and emerging market economies, to have merger control laws. Additionally, national competition authorities around the world are moving closer to a ''common competition culture." Now that doing business often means doing business globally, preparation for multijurisdictional filings should be a routine part of the overall business strategies developed by companies and their advisers. As a result, organizations involved in mergers and acquisitions need to be aware of new developments taking place in the various merger regimes around the world.

US-EU Best Practices on Cooperation in Merger Investigations

On 14 October 2011, the Competition Directorate-General of the European Commission (DG COMP), the US Federal Trade Commission and the US Antitrust Division of the Department of Justice (US agencies) adopted a revised version of the 2002 Best Practices on Merger Cooperation (Best Practices). The Best Practices establish an advisory framework for inter-agency cooperation in parallel merger investigations. They are intended to promote fully-informed decision-making, minimize the risk of divergent outcomes, enhance the efficiency of investigations, reduce burdens on merging parties and third parties, and increase the overall transparency of the merger review process.

Communication between reviewing agencies. Where substantial cooperation may be beneficial, the agencies should seek to agree on a tentative timetable for regular inter-agency consultations. Such consultations will be particularly useful at key stages of the investigation, such as: (i) in US investigations, before the date the agency closes an investigation without taking action, before it issues a second request, and before the relevant DOJ section/FTC division makes its case recommendation to senior management; (ii) in EU investigations, no later than three weeks after a Phase I investigation has been opened, before the opening of a Phase II investigation, before the closing of a Phase II investigation, and before issuing a Statement of Objections; and (iii) in both US and EU investigations, at the commencement of remedies negotiations with the merging parties, and prior to a final decision to seek to prohibit a merger.

Coordination on timing. The Best Practices encourage fluent bilateral exchange of information...