Arguments for the EU-US Convergence and against a Global Merger Control Regime

Abstract

The internationalization of markets, i.e., globalization, has resulted in a number of transnational mergers during the past few years, which require ex ante notification filings in multiple jurisdictions. This requirement is costly for both the merging companies and regulators and creates uncertainty. Responding to this phenomenon, commentators have argued for the establishment of a global merger control policy administered by a global agency. I argue against this proposal for two reasons. First, I evaluate procedural concerns that include the requirement to give reasons and the third parties' and the merging parties' right to appeal the national regulators' decision. Second, I explore the debate as to what the goals of antitrust law should be and examine their biased application to particular facts. I illustrate my argument against the adoption of a global merger law applied by a single agency using the three recent mergers between US Airways and American Airlines, between Universal and EMI and between Microsoft and Skype. Lastly, I examine different solutions offered by commentators and propose a modest solution which would mitigate the problem of duplicative review of transnational mergers by the EU and the US To conclude, I advocate the desirability of EU-US convergence in merger control.