International Merger Policy

International Merger Policy

Applying Domestic Law to International Markets

Julie Clarke

International Merger Policy offers a compelling comparative assessment of domestic and regional merger laws and procedures. Identifying important areas of convergence and emerging best practice, it considers existing levels of international cooperation and identifies the key costs associated with transnational merger review before evaluating possible mechanisms by which they might be reduced.

Chapter 3: Substantive merger law

Julie Clarke

Subjects: economics and finance, money and banking, law - academic, competition and antitrust law


An assessment of substantive merger law involves consideration both of the relevant legislation and of the way in which that legislation is applied in practice. There are, broadly, two substantive legal tests currently adopted, either exclusively or in combination, to determine whether or not a merger should be allowed to proceed; a competition test ('competition' test) and a market dominance test ('dominance' test). The same test is normally applied regardless of whether the merger is national or transnational in scope, although the practical application of the law may vary where international factors are involved. The broad convergence of substantive law, particularly in countries with relatively mature merger laws, is not surprising given the similarity of the stated policy objectives for merger regulation among member countries, most commonly the protection of consumers through the preservation of competition. This is the case even where these stated objectives mask some underlying differences in philosophy. Beyond established regimes, such as those represented by OECD countries, broad level convergence has been facilitated by information exchanges and guidelines developed by international bodies such as the ICN and UNCTAD, which inform the development of new merger regimes. Nevertheless, despite the apparent 'paper' convergence of substantive law and philosophy, differences remain in the true nature and strength of merger regulation, either because of the adoption of different analytical approaches or because weak enforcement practices in some countries render the laws of more limited effect.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information