Merger Remedies in Transnational Mergers: When Less is More

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Ana Paula Martinez, Mariana Tavares de Araujo, Dec 16, 2014

In the current context of increasing global mergers and complex vertical arrangements, antitrust authorities all around the world are faced with the challenge of designing remedies to, on the one hand, allowing a given transaction to go forward while, on the other, also preventing competitive harm from taking place.

The traditional approach of imposing structural remedies in horizontal transactions and conduct-based remedies in vertical integrations is being replaced by a growing inclination towards hybrid solutions. Scholars and the business community argue for behavioral or hybrid solutions based on claims that structural remedies are not necessarily the most effective response for an antitrust issue and, therefore, “competition authorities should be (…) creative in devising remedies,” which is one of the guiding principles in conceiving merger remedies according to the OECD. Brazil is one example of a jurisdiction that has been making efforts to introduce “alternative” remedies to address potentially adverse effects arising from a merger.