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International Cooperation and Regulation of Transnational Mergers

The major problem associated with the regulation of transnational mergers is the allocation of regulatory jurisdiction. Each country concerned may wish to exert jurisdiction and apply its national competition law to regulate the alleged anti-competitive effects of proposed mergers in its territory. However, this regulatory approach is flawed because of the risks of inconsistent decisions regarding the legality of ed merger due to different national competition laws which are applied by the regulating authorities.

Therefore it should be desirable to opt for more sensitive approaches to the transnational nature of mergers and which allow cooperation between competition authorities. A possible solution may bilateral cooperation agreements through which two countries coordinate the enforcement activities of their respective competition authorities. Yet, the benefits of these agreements are available only to competition authorities and firms of the signatory parties. This limitation apparently undermines the capability of bilateral agreements to regulate transnational mergers.

Transnational mergers can be also regulated by a set of multilateral rules and principles created through instruments of hard law. However every attempt to introduce legally binding multilateral competition rules has so far failed because of the opposition of countries which perceive such proposals as an unacceptable reduction of sovereignty. Alternatively, multilateral competition rules can be introduced through instruments of soft law. National sovereignty is not threatened by these instruments but countries may not adopt them because of their voluntary nature.

This author advocates an international merger control framework (IMCF) for the regulation of transnational mergers, which rests on an informal pillar and a formal pillar. The former includes a number of non legally binding competition principles. Consistency of these principles with the concepts of legitimacy and efficiency, as well as the presence of peer reviews and assistance programmes, should lower the risk that of not-implementation of the principles. The formal pillar include bilateral cooperation agreements which apply to merger affecting the countries which have concluded the agreements instead of the multilateral principles. Essential pre-condition for the application of the bilateral agreements should be that the level of cooperation achieved of the agreements is at least equal to that of the informal pillar.

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ABSTRACT International cooperation and the regulation of transnational mergers The major problem associated with the regulation of transnational mergers, which affect several national markets, is the allocation of jurisdiction. Each country concerned may wish to exert jurisdiction and apply its national competition law to regulate the anti-competitive effects a merger may have in its territory. However, this approach may lead to risks of inconsistent decisions regarding the legality of mergers. Indeed, the national competition laws applied by the regulating authorities may diverge in several aspects, which raise the likelihood of inconsistency. Therefore it is desirable to opt for regulatory approaches which are more sensitive to the transnational nature of mergers and which allow cooperation between competition authorities. A possible solution may be bilateral cooperation agreements through which two countries coordinate the enforcement activities of their national competition authorities. However, the benefits of these agreements are enjoyed only by the signatory parties. The sole reliance upon bilateral agreements does not appear to be the optimal regulatory approach towards transnational mergers. Transnational mergers can also be regulated by a set of multilateral competition rules created through instruments of hard law. However, every attempt to introduce legally binding multilateral competition rules has failed because of the opposition of countries which perceive such proposals as an unacceptable limitation of sovereignty. Alternatively, multilateral competition rules can be introduced through instruments of soft law. National sovereignty is not threatened by these instruments, but countries may not implement such instruments because of the soft law nature of the latter. This author advocates the creation of an international merger control framework (IMCF) for the regulation of transnational mergers. This framework will rest on an informal and a formal pillar. The former includes non-legally binding competition principles. Consistency of these principles with the concepts of legitimacy and efficiency, as well as the presence of peer reviews and assistance programmes, should lower the risk of non-implementation. The formal pillar includes bilateral cooperation agreements which apply to merger affecting the countries which have concluded the agreements. As essential pre-condition for the application of bilateral agreements, the level of cooperation achieved by such agreements should be at least equal to that ensured by the informal pillar. 1

Tesi di Dottorato

Dipartimento: Law Faculty

Autore: Michele Giannino Contatta »

Composta da 361 pagine.

 

Questa tesi ha raggiunto 288 click dal 19/11/2007.

 

Consultata integralmente 5 volte.

Disponibile in PDF, la consultazione è esclusivamente in formato digitale.