Definitions of the market. Taking clearly ridiculous views of

market definition isn't helpful to the evaluation process.

If the first question is answered in the affirmative, that is, if it's

Found that the merger will impede competition, the investigators

and tribunal must ask whether there aren't efficiency gains from

The merger that may counter-balance the negative impact on

Competition. Here again, try and avoid presenting extreme ideas

or analyses based on anecdotal evidence alone - don't

Exaggerate the efficiencies expected from the merger, and bear

In mind that the evidence regarding the efficacy of mergers as a

Corporate strategy is sceptical at best. Or if, as appears

inevitable, you're going to use the economies-of-scale argument

for a merger, then present evidence, don't simply assert it, and

don't simply claim that because there are significantly bigger

Firms in the same industry elsewhere in the world that this

Somehow means that the continued existence of your firm

Demands that you be permitted to merge. And related to this, if

you're going to insist that turning down the merger will result in

The death of one or even both parties to the merger, then again

Be prepared to support this with data and sound analysis.

Assertions are cheap, and we've heard them all before. Your

Problem with efficiency defences is that they need to be

Evaluated up front before the merger has been consummated.

This means that the claims are inherently speculative, as

Parties are not yet in a position to demonstrate their existence.

The final step is the assessment of the impact on public

Interest. An anti-competitive merger may be permitted in the

Face of strong public-interest reasons in favour of the merger;

by the same token, a merger that's judged to have no negative

Impact on competition may be disallowed on public-interest

grounds. This is a difficult and controversial step. It's eased

Somewhat by the fact that the Act specifies the public-interest

grounds that may be considered, but it'll always be a difficult

Judgment call. Again, cynicism and vastly exaggerated claims

don't help anyone's case or promote the effective

Administration of the law.

I want to end this by emphasising a point made at the

beginning of my discussion of mergers. There's no public policy

presumption against mergers. On the contrary, it's recognised

That. these transactions are frequently an aspect of corporate

restructuring that's inevitable and productive. I'd expect the

Vast majority of mergers to be easily approved. And even those

That do run into objections from the competition authorities are

Generally susceptible to a negotiated resolution that allows a

Form of the transaction to go through without offending

Competition requirements. But mergers that are devised for

Dominating markets will fall foul of the Act. Better to recognise

This up front; in other words, factor this regulatory hurdle into

your calculations right from the beginning. It'll save time and

Money and considerable frustration down the line.

Exam focus

Part 1

Extract 1

Lawyer: So, Ms Wilson, what can I do for you?

Ms Wilson: Well, I just bought a house last month. When I

signed the contract, I didn't realise - and the seller didn't

tell me - that my neighbour's driveway is entirely on my

property. What I'd like to know is if I have any recourse

Date: 2015-12-11; view: 779