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General Principles of Merger Remedies. Ingrid Zappia & Mark Rakers. International Competition Network Merger Working Group Workshop Taipei, March 10 & 11 2009. Structural vs. behavioural merger remedies.

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general principles of merger remedies

General Principles of Merger Remedies

Ingrid Zappia & Mark Rakers

International Competition Network Merger Working Group Workshop Taipei, March 10 & 11 2009

structural vs behavioural merger remedies
Structural vs. behavioural merger remedies
  • Merger remedies are commonly classified as ‘structural’ or ‘behavioural’
    • A structural remedy generally involves a change to the structure of the merged firm through a divestiture of one or more of its businesses/assets.
    • A behavioural remedy generally refers to an ongoing remedy designed to modify or constrain the behaviour of the merged firm.
  • Strong preference for structural merger remedies (divestiture of assets to address competitive harm)
general principles of merger remedies1
General principles of merger remedies
  • Effectiveness
  • Enforceability
  • Proportionality
  • Burden and costs
  • Transparency and consistency
effectiveness of merger remedies
Effectiveness of merger remedies
  • The remedy must address the potential harm which flows from the concerns identified
  • The remedy must be customised to the particular nature of the relevant merger
  • Consultation with relevant parties as to effectiveness of proposed remedy
enforceability of merger remedies
Enforceability of merger remedies
  • Before accepting a merger remedy it is important to ensure that the remedy will be implemented in a timely manner
  • Obligations of relevant parties must be clear and unambiguous
  • The party offering the merger remedy is capable of meeting its obligations
  • Can the remedy offered be frustrated by the actions (or inaction) of third parties?
  • What consequences flow if there is non-performance of the obligations?
proportionality of merger remedies
Proportionality of merger remedies
  • Remedy should be proportionate to the competition concerns or detriments
  • Burden and costs of implementing a merger remedy should be considered
  • Remedy does not need to improve competition beyond the pre-merger level of competition
  • Needs to adequately address the potential harm identified which results from the merger and be effective in restoring or maintaining competition
transparency and consistency of merger remedies
Transparency and consistency of merger remedies
  • Transparency can assist in optimising the effectiveness of the remedy and compliance by the merger parties with their obligations
  • Transparency should not involve any disclosure of confidential information
  • Consistency will provide a reliable basis for merger party decisions and expectations – however, unique transactions may require a different approach/solution depending on the specific circumstances.
may be instances where outright rejection of a merger is the only suitable outcome
May be instances where outright rejection of a merger is the only suitable outcome
  • If no remedy can be shown to be effective and enforceable, outright rejection of the merger may be the only suitable outcome
accc experience
ACCC experience
  • Standard features of an undertaking:
    • Objectives & competition concerns to be remedied
    • Interpretation clauses
    • Information gathering clauses
    • Monitoring compliance: auditors and independent managers
    • Merits of standard clauses - consistency vs flexibility
accc experience1
ACCC experience
  • Incentives of parties may change
    • good faith negotiations
    • impact on future undertakings
  • Preference for up-front divestiture
    • aligns interests of parties and regulator
    • composition, asset and purchaser risks
  • Behavioural vs. structural remedies
    • strengths and weaknesses, including monitoring & enforcement challenges
accc experience2
ACCC experience
  • Commercial timeframes – offering undertakings early
  • Remedial action available for breach of undertaking
  • Undertakings Compliance Unit – dedicated unit for negotiation, monitoring and enforcement of undertakings