International Merger Reform Effort's Effect On Multinationals

At present, more than 60 jurisdictions have premerger notification and review statutes on the books, and the number continues to grow. Virtually any significant transaction between companies with international operations is now, therefore, potentially subject to premerger notification and waiting period requirements in multiple jurisdictions. In many instances, the applicable jurisdictional thresholds are very low, subjecting transactions to onerous reporting and extended waiting period requirements whether or not the transaction has any significant impact in the jurisdictions concerned.

On June 25, 2003, the International Competition Network (ICN) adopted an initial set of "Recommended Practices for Merger Notification Procedures" directed at reducing the costs and burdens associated with what former U.S. Assistant Attorney General Charles James has aptly described as the "multijurisdictional merger thicket." Launched in October 2001, the ICN is an international organization comprised of competition enforcement agencies from around the globe. Sixty-eight jurisdictions are currently members of ICN. These range from Albania to Zambia and include the United States, the European Union, all EU member states (save Luxembourg), Canada, Mexico and Japan.

The development of recommended practices for merger review in the multijurisdictional context has been one of the ICN's top priorities since its inception. Last year, at its first annual conference in Naples, Italy, the ICN adopted "Guiding Principles for Merger Notification and Review," The principles include the following elements: sovereignty; transparency; non-discrimination on the basis of nationality; procedural fairness; efficient, timely and effective review; efficiency-enhancing coordination among enforcement agencies; convergence of merger review procedures toward agreed best practices; and the protection of confidential information.

The ICN's Recommended Practices build on these Guiding Principles. At the second annual conference in Mrida, Mexico, ICN members adopted four new Recommended Practices, dealing with review periods, requirements for initial notification, transparency of merger review proceedings and periodic review of merger control provisions. The ICN also formally adopted three Recommended Practices provisionally endorsed last year in Naples covering jurisdictional nexus, notification thresholds and timing of notification.

More specifically, the recently adopted Recommended...