Antitrust Law Daily Wrap Up, ANTITRUST NEWS: ABA Antitrust Section urges agency transparency, consistency in M&A reviews, (Dec 17, 2015)

By Greg Hammond, J.D.

The American Bar Association Section of Antitrust Law issued comments, entitled “Report of the Task Force on Foreign Investment Review,” describing the merger review and approval process within a number of major jurisdictions, identifying similarities and differences among these jurisdictions, and offering recommendations for the future.

The report identified two principal categories of differences between agencies within the same jurisdiction, as well as between agencies with a similar mandate but in different jurisdictions, including: (1) differences in timing and procedure and (2) differences in substance.

In particular, the Antitrust Section noted that timetables for conducting antitrust and competition reviews vary considerably among different agencies, which can create difficulties for parties endeavoring to close transactions. In addition, the various mandates of multiple agencies—including notification obligations, waiting periods and standstill obligations, pre-notification contacts, third-party rights, confidentiality, and rights to challenge a negative decision—could create different review periods and procedures for the same transaction. Finally, different agencies may reach different conclusions about a transaction because they apply different tests.

To solve these inconsistencies and to decrease uncertainty for companies attempting to close transactions, the Antitrust Section recommends that: (1) agencies should be more transparent with regard to timetables; (2) agencies within each jurisdiction should endeavor to make the timetables for reviews more consistent with one another; (3) agencies within each jurisdiction should institutionalize communication with comparable agencies in other jurisdictions that review foreign investment; (4) agencies should institutionalize communication with comparable agencies in other jurisdictions that can be expected to review some of the same foreign investments; (5) agencies should be more transparent with regard to the substantive criteria they apply; and (6) entities such as the International Competition Network and the Organization for Economic Cooperation and Development should consider playing a role in seeking greater harmonization of foreign investment review among different jurisdictions.

News: AcquisitionsMergers Antitrust