Volume 5 - Issue 2
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Editorial - Globalisation, International Enforcement and Extraterritoriality
The last fifteen years have recorded a proliferation of multi-jurisdictional competition law cases. Moreover, a number of bilateral agreements have been concluded between different National Competition Authorities (NCAs). However, the degree of bilateral cooperation between the NCAs of different developing countries is still quite limited. The article analyzes these issues taking Brazil and Argentina as case study. These countries have enforced a competition law since 1994 and 1999 respectively. However, while Brazil has improved the quality of its enforcement action during the last years, in Argentina little progress has been recorded. The NCAs of the two countries have adopted a number of initiatives at the Mercosur and bilateral level in order to increase the degree of coordination. Nevertheless, to date these initiatives have not been successful. This article argues that the lack of cooperation has been caused by the different stages of development of the competition law in the two countries, and due to the lack of personal contacts between the officers of the NCAs. In its conclusions the article identifies a number of lessons applicable to the NCAs of other developing countries which aim at strengthening their bilateral cooperation.
A key consequence of the lack of any meaningful system of international competition law is that international mergers and acquisitions must comply with a plethora of national merger control regimes. In the absence of an international equivalent to the EU one-stop-shop, and in the context of globalised markets, merging parties must either notify the proposed transaction to each and every jurisdiction where the thresholds are satisfied, or engage in a risk assessment and only notify those jurisdictions that are most closely associated with the merger, and/or where the merging parties have ‘assets on the ground’. Some sources suggest in excess of 70 jurisdictions have ex ante notification requirements, and most of those impose mandatory suspension pending review. Crucially, the triggering thresholds for notification vary and it is possible for merging parties to be legally obliged to notify the transaction even in the objective absence of a substantial nexus to the reviewing jurisdiction. There have been efforts to agree common principles in this area by the ICN and other international bodies, yet key points of divergence remain, which exacerbates the burden of compliance experienced by the merging parties. This article identifies some of the key ‘unnecessary costs’ that can be experienced by merging parties subject to multi-jurisdictional merger review and explores the extent to which international convergence efforts and case cooperation can benefit merging parties. In discussing international convergence, the article focuses more on procedural rather than substantive matters and also looks to the recently enacted merger control laws in China and India to determine whether internationally agreed best practices have been adhered to. The article also calls for a transparent debate between regulators, practitioners and academics as to the merits and demerits of multilateral cooperation in specific and appropriate cases, which does not take place at present in spite of the ever-increasing number of merger control regimes.
This article charts the evolving regulation of cooperation and coordination between international transport firms, in particular those operating within the liner shipping and international air transport sectors. There has been a long history of exemption of these sectors from the rules and regulations of antitrust or competition law. In the past three decades, regulatory reforms and privatization have, however, subjected these sectors to competitive forces that have transformed these industries. With the introduction of competition law in many jurisdictions, the justifications for their continued exemption have come under intense scrutiny. In the late 1970s, the US initiated deregulation of its domestic airline sector and introduced reforms in the regulation of liner shipping which resulted in greater competition and lower prices. In 2006, the EU adopted a tougher stance by becoming the first jurisdiction to remove exemption for IATA passenger tariff conferences from 2007 and for liner shipping conferences from 2008. While arguments for the benefits of competition can be generally made, the lack of harmonization of competition laws together with the international nature of these sectors (which are further complicated by high concentration, network characteristics, and government sanctioned barriers to entry) continue to present challenges for competition authorities.
• ©2003-2011 Angus MacCulloch & Andrew Matthews •