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: 832
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