Practical Law Competition - International merger notifications

Name *This question is required.

Organisation *This question is required.

1. Application of merger control threshold tests can be tricky. What should you be aware of in particular (tick all that apply)? *This question is required.

There is often no guidance on how notification thresholds should be applied in a particular transactions
There are jurisdictions where the notification thresholds are based on market shares
Notification can be triggered in some jurisdictions even where the target doesn’t have any turnover or presence in general
Joint ventures and even acquisitions of minority interests are notifiable in some jurisdictions

2. When faced with an international merger notification that potentially satisfies the merger control thresholds in a large number of jurisdictions, what should be taken into consideration when deciding where to file? *This question is required.

The importance and detections/enforcement record of relevant competition authorities in each jurisdiction
Whether or not there are any substantive issues in each relevant jurisdiction
Whether or not the parties have substantial activities in each relevant jurisdiction
The potential for fines and other penalties or reputational issues in mandatory jurisdictions

3. If a transaction satisfies the EU Merger Regulation thresholds, does it also need to be notified in individual EU member states? *This question is required.

4. Can you close a transaction before receiving clearance from all the relevant suspensory jurisdictions? *This question is required.

5. Which of the following countries have recently implemented merger control laws (tick all that apply)? *This question is required.

India
COMESA (the Common Market for Eastern and Southern Africa)
The United States
China

6. The UK is a voluntary jurisdiction. Does this mean that there are no risks to not filing? *This question is required.

7. Different jurisdictions have different timelines. How can lawyers help co-ordinate the transaction timetable and the various timetables for merger notifications? *This question is required.

Be aware of the deal timetable and make sure all parties are kept aware of any merger filing issues that may cause changes to the timetable
Be aware that stated merger timelines can be affected by a number of factors, such as pre-notification procedures and "stop the clock" issues
Length of review period varies in every jurisdiction, but there is usually a shorter period for preliminary investigation and clearance of simple unproblematic cases and an additional "Phase 2" period for more challenging cases
It is always possible to close the main transaction, but hold separate the businesses in jurisdictions in which approval is outstanding until merger clearance is obtained

8. The Enterprise and Regulatory Reform Act 2013 (ERRA 2013) comes into effect on 1 April 2014. What are the main changes to the UK’s merger regime under the ERRA 2013 (tick all that apply)? *This question is required.

A new Competition and Markets Authority (CMA) will replace the Office of Fair Trading and the Competition Commission as the UK competition authority.
The CMA will have a discretionary power to impose hold separate orders for completed and anticipated mergers.
The UK will become a mandatory, suspensory jurisdiction where mergers will need to receive clearance before completion.
The CMA will be able to impose fines of up to 5% of worldwide turnover for breach of hold separate orders.

9. "Gun-jumping" or implementation of a merger before receiving clearance can raise serious competition issues, such as anti-competitive information exchange between competitors. However, parties are always keen to start integration planning as soon as possible. How can lawyers deal with this issue (tick all that apply)? *This question is required.

Deal documentation drafted to ensure that buyer cannot review / approve seller's normal business transactions
Put derogations / hold separate agreements in place if necessary
Draft detailed guidance to the parties on integration planning, including what can / can't be done before receiving merger clearance and types of information that can / can't be exchanged
Consider setting up a "clean term"

10. In making its substantive assessment of a proposed merger, competition authorities will usually have regard to (tick all that apply): *This question is required.

Public interest considerations
Barriers to entry in the relevant market [market concentration is part of market structure?]
Degree of market concentration
Likely behaviour of the merged entity post closing
Likely reaction of customers and consumers