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Definitions of the market. Taking clearly ridiculous views ofmarket 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: 913
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