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Manish Das, Andrea Gomes da Silva, Jun 25, 2008
t is no surprise that the Substantive Guidelines and the Procedural Guidelines quickly became the starting point for those trying to understand how the authorities would apply the Enterprise Act to their merger. Yet these guidelines were published at a time when the Act was new and untested. Many of the legal provisions on which guidance was offered, such as the rules on “public interest” mergers and power to accept “initial undertakings” had not been applied in practice. Questions also existed as to how the Courts would interpret key provisions of the Act, such as the test for “reference.” Five years have now elapsed since the introduction of the Act and the publication of the Substantive and Procedural Guidelines. Over this period, the Act and the Guidelines have been regularly applied in practice, and several key aspects of the Act have been scrutinized by the courts. The net effect has been that the process of merger review today has progressed considerably from that described in the existing Substantive and Procedural Guidelines.
