ICN Best Practice: Soft Law, Concrete Results

Maria Coppola, Jul 14, 2011

Cross-border mergers and acquisitions need approval from an increasing number of competition agencies. Today more than 90 jurisdictions actively engage in merger review, an increase from approximately 60 jurisdictions in 2000, and fewer than a dozen jurisdictions in 1990. As the volume of cross-border transactions increases and with merger filings again on the rise, reducing the unnecessary costs and burdens of merger review is as important today, if not more so, than it was when the International Competition Network was formed in 2001.

The costs of merger control fall both on agencies and businesses. For business, for example, the International Chamber of Commerce recently noted, “Compliance with merger control has become a major factor in mergers and acquisitions, in terms of both cost and time. Even relatively small transactions may be subject to merger control in ten or more jurisdictions.” For many agencies, a significant portion of their budget is dedicated to merger review, and only a tiny percentage of the reviewed transactions are potentially problematic. In a 2008 ICN survey on agency effectiveness, ICN member agencies cited resource constraints due to review of mandatory notifications as the principal reason they could not proactively determine their enforcement and advocacy priorities.