Applying Domestic Law to International Markets
Chapter 8: The cost of transnational merger regulation
Despite increased levels of cooperation, particularly between countries enjoying close bilateral ties, and growing convergence facilitated by the development of best practice recommendations, significant differences remain between national merger control regimes and the analytical approaches taken by regulators to their enforcement. As a result, the unilateral extraterritorial applicationof national laws to trans-national mergers continues to impose significant costs on merging parties, competition authorities and society at large. It has also made merger review less predictable. As merger activity becomes more frequent and increasingly transnational and more nations adopt merger regimes, this cost will, in the absence of any meaningful reforms, continue to rise. Previous chapters have considered in some depth the benefits associated with the detection and prevention of anti-competitive mergers and the processes employed to achieve this goal. They have also examined some of the costs associated with national merger laws and processes and their extraterritorial application. Despite the cost, the regulation of mergers through PMN, whether mandatory or voluntary, remains the most appropriate way of achieving the goal of enhancing and maintaining modern consumer welfare and that the extraterritorial application of substantive merger laws, based on local economic impact, is an appropriate, and at times necessary, mechanism for furthering this goal.
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