Chapter 3: Mergers
In a large contested merger, the stakes are very high. In the usually packed room on the opening day of a significant merger inquiry, the full cast of characters is present. The advocates are primed, in most cases having become expert in a fact-intensive field to which they had never given 10 minutes’ thought prior to receiving their brief, a talent that is a hallmark of experienced advocates. The senior attorneys representing the merging parties shepherd their clients, who, no matter how powerful in their own worlds, invariably appear somewhat uncertain on alien turf, while the junior attorneys and articled clerks fuss around mountains of files. The transaction advisers, who have frequently initiated and driven the transaction with little thought given to the competition inquiry, exude indignation and anxiety at having to deal with this final hurdle over which they have little influence and for which they have zero sympathy. The Commission staff are on home ground and so relatively at ease. The media representatives, used to these little dramas, are also at ease, but expectant. For many in the room – including, I might add, the Tribunal members and its staff – many hours of intensive, head-cracking and often last-minute work have brought them to this point. The tension that pervades these occasions is palpable and invigorating, as is the frisson that I always experience on entering the hearing room. There are two well-established misconceptions surrounding merger regulation. First, that it is, or should be, low on the list of priorities of a new competition authority.
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