Abstract
Developed economies have historically been a model for emerging market economies, particularly in the development and enforcement of competition laws. Modifications to competition law rules in developed economies, however, may not always be practical for emerging market economies to adopt. Insufficient knowledge, experience, and power of competition law authorities in emerging markets require a structure with greater legal certainty rather than one that provides a wide berth for interpretation. This article provides an overview of some of the significant developments in the 2010 U.S. Horizontal Merger Guidelines from an emerging market perspective. While taking into consideration the general characteristics of emerging market countries, the treatment of four specific topics under the new Guidelines will be scrutinized from a law and economics perspective: market definition, market shares and market concentration, market entry, and coordinated effects. This article also delves into discussions of Turkish competition law matters, as an example of emerging merger regime models, with respect to each of the four areas of discussion.
Highlights
In August 2010, the United States Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) adopted the new Horizontal Merger Guidelines.[1]
U.S merger review practices have traditionally served as a model for countries that are in the process of developing merger laws, the modified approach in the United States following the 2010 Guidelines may require emerging market economies to more closely scrutinize the suitability of the U.S practices as a model for their own laws and adopt the new guidelines only after adjusting them in line with their own experiences, skills, and capabilities
An appropriate regulatory framework for effective enforcement of competition laws is crucial for emerging market economies to establish policies aligned with developed economies
Summary
The competition laws of developed economies have served as models for emerging market economies.[2] As the dynamics that shape competition policy in developed economies evolve, emerging economies could choose to continue modeling their competition laws on the practices of developed economies. Substantive developments in developed merger control regimes may not be well suited to serve as models for the less evolved emerging markets. This article focuses on lessons from the 2010 Guidelines for competition law regimes of emerging market countries by examining certain adaptations that are important for merger practices in those countries.[3] After providing an overview of the general characteristics of emerging market merger practices, this article will assess in detail four major developments in the 2010 Guidelines: the changes in approach to market definition, market shares and concentration, market entry, and coordinated effects. The competition law practices in Turkey are weighed against, and contrasted with, the changes in U.S merger practices to ascertain the best approach for emerging market merger practices
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