The Real Threat Posed by Global Merger Enforcement Divergence

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Adam DiVincenzo, Dec 16, 2014

In today’s world, where nearly 100 enforcement regimes are empowered to seek remedies for international transactions, it is inevitable that competition laws and practice in one jurisdiction differ from another. In the context of the U.S. and EU regimes, Form U.S. FTC Chairman Muris noted that while the antitrust and competition laws of separate jurisdictions “share many fundamental precepts and goals,” there are always differences “that matter to businesses and antitrust enforcers alike.” Given the range of values and policy goals that persist across jurisdictions, a degree of divergence is not only expected, but may be unavoidable.

A more obvious form of divergence is the differing legal standards that may apply to a transaction that is subject to review by authorities in multiple jurisdictions. While competition laws employ distinct formulations, the laws of virtually all jurisdictions direct antitrust enforcers to review the impact of a proposed transaction on competition and consumer welfare…Nevertheless, substantive merger control laws in a number of jurisdictions incorporate a range of policy aims beyond competition and consumer welfare.

 

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