In this issue:
The subject of merger remedies dramatically demonstrates the increasing complexity of antitrust regulation. In this issue, organized by Danny Sokol, we look at problems with conditions imposed on proposed mergers, including (i) dealing with ever-changing high-tech markets, (ii) conflicts across multiple regimes, (iii) competition laws that deal with more than maintaining competitive markets, (iv) asking whether authorities or companies should design solutions, and (v) minority ownership. Plus we have two Of Special Interest articles—defining relevant markets, and the new Greek method of identifying collusion. Happy holidays, everyone!
A number of cases suggest that competition authorities should undertake a more nuanced view of how technology markets work in their merger remedies. D. Daniel Sokol (Univ. of Florida)
Technology mergers present issues not often present in combinations occurring in more traditional industries, and jurisdictions around the globe are dealing with such challenges differently. Scott Sher & Kellie Kemp (Wilson Sonsini)
So which divergence problems relating to remedies pose the greatest challenge to the international merger control system? Adam J. Di Vincenzo (Gibson, Dunn)
In practice, creativity in devising merger remedies can very easily lead to conflicting decisions in global deals. Ana Paula Martinez & Mariana Tavares de Araujo (Levy & Salomão Advogados)
Expanding EU Merger Control to Non-Controlling Minority Shareholdings: A Sledgehammer to Crack a Nut?
Although there is theoretical support for the notion that structural links may in certain circumstances raise antitrust concerns, the available evidence is insufficient to justify the EUMR’s expansion. Nicholas Levy (Cleary Gottlieb)
Some agency remedies, such as compulsory innovation, compulsory licensing, and detailed conduct remedies that border on industrial engineering, risk exactly the kind of “costly government entanglement in the market” that the 2004 Policy Guide sought to avoid. Christine Wilson & Keith Klovers (Kirkland & Ellis)
Of Special Interest
It is far from unreasonable to require that qualitative evidence of a separate market be supported by an accepted economic test when the data required to perform such a test is readily available. David Balto & Matthew Lane (Law Offices of David A. Balto)
The guide may be used by tenderers not only to self regulate, but also to scrutinize and denounce the behavior of other candidates and thus assist competition authorities in detecting cartel activity. Lia Vitzilaiou (Lambadarios Law Firm)