The three faces of international antitrust, and the paradox for international merger control.
PhD thesis, University of Glasgow.
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The term ‘international antitrust’ is a convenient yet inaccurate means of describing the national rules, bilateral agreements, and multilateral initiatives that attempt to fill the vacuum created by the failure to agree upon international antitrust rules. The ‘stillborn’ International Trade Organisation (ITO) would have integrated international antitrust rules into the multilateral trading system and provided a twin track to trade liberalisation, but was never ratified. The three faces of international antitrust – unilateralism, bilateralism and multilateralism – have developed in parallel to the increasing globalisation of trade, removal of state-imposed barriers and economic integration and interdependency. International cooperation and convergence efforts in antitrust are essential in order to safeguard the benefits that should flow from trade liberalisation. Cooperation and convergence also diminishes the risk of conflict between antitrust authorities, which would otherwise increase due to: the extraterritorial enforcement of national antitrust rules; the growing number of antitrust regimes; and ‘ripple effects’ due to globalisation of trade. In analysing the activities that comprise the international antitrust dialogue, this thesis suggests that the primary objective of the dialogue is to support and supplement trade liberalisation. There is doubt however, as to whether the operation of the international merger control framework (which consists of a plethora of national merger control regimes, bilateral engagement, and multilateral convergence efforts) is consistent with the primary objective.
Mergers and acquisitions (M&A) are important means of foreign direct investment and can create cross-border synergies, which should help realise the benefits to be reaped from trade liberalisation. While anti-competitive M&A jeopardise those benefits, and are correctly scrutinised (and occasionally blocked), multi-jurisdictional merger review must balance the need to intervene in anti-competitive M&A, with the desire to facilitate all other M&A. A paradoxical position arises however, if multi-jurisdictional merger review unduly hinders those M&A which would further the cause of trade liberalisation, whilst attempting to control the anti-competitive mergers. Hence the operation of multi-jurisdictional merger review is potentially inconsistent with the primary objective of the international antitrust dialogue. This thesis focuses upon the international merger control framework in chapter 5, and evaluates whether reforms are needed to ensure greater consistency with the primary objective. This thesis concludes by offering several recommendations regarding the international antitrust dialogue, particularly with regard to the international merger control framework, but recommends against the creation of an international merger control regime (IMCR), or a common pre-merger notification system at the current time. This thesis is intended to be up to date as of 1 May 2007.
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