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No more than a handful of countries had serious enforcement systems in place in 1990 to deal with mergers under the competition laws. Today, some 80 countries provide for competition law review of mergers, with 20 more in the making.
As markets become more global, so the merger of two substantial firms based in the same country may well have large effects in a variety of places, starkly illustrated by GE Honeywell earlier this year. The number of mergers requiring multiple filings in various jurisdictions has increased substantially and it is now common in large deals to face filing requirements in 20, 30 and 40 jurisdictions - a time-consuming and costly process.
Last year saw a remarkable change in thinking among competition authorities as to the nature and manner of addressing issues arising from the growth and diversity of national competition regimes. Certainly, contrary to previously-held views in the US agencies, there seemed to be a widely-held opinion that the time had come for a multilateral initiative to complement existing bilateral agreements and institutional arrangements.
It was against this background that a meeting was held earlier this year at Ditchley Park outside London, attended by more than 40 of the world's senior competition law officials and professionals from Asia, the Pacific Rim, Europe and North and South America. Acting in an individual capacity, the participants discussed the concept and role a new multilateral forum could play in identifying the problems and debating solutions.
It was envisaged that the forum would draw together a diverse combination of competition professionals who would add practical value, rather than duplicating the work of the World Trade Organisation, the Organis-ation for Economic Coop-eration and Development or the United Nations Conference on Trade and Development. The result was a consensus to set the agenda and for the formal launch of some form of global competition group late this year or early next year.
On the surface, it appeared that the first steps were being taken in the process towards a global solution. However, since this initial meeting, disturbing questions have arisen as to whether the momentum has been lost and the initiative had started to lose credibility.
First, delays occurred due to the lengthy change of the leadership process at the US Antitrust Division, and then by the apparent insistence of competition agencies that they alone should manage the forum's design and planning. Although other interested parties attended the meeting, including representatives of the international legal profession, the business community and consumer groups, a planning group was formed comprising representatives of competition authorities.
The announcement in New York on 25 October that the competition authorities would be launching an international competition network next year was a positive move, with the first public words of support from the US Department of Justice. Although it is not clear how the network will operate and which interested parties will be included in the discussions, a number of issues for debate have been identified, including the problems caused by the multiplicity of merger control systems.
Canadian competition lawyer J William Rowley QC of McMillan Binch was the driving force behind the Ditchley Park meeting. He said: "Given the serious and increasing marketplace costs imposed by multiple and divergent antitrust regimes, particularly as regards merger clearances, international business community leaders and the international legal profession need to continue their responsibility to bring about action and reform. The questions to be addressed are sufficiently pressing that the formal launch of the forum, which provides an ideal platform to address these issues, should not be delayed. The developments we heard in New York are welcome and timely."
One thing is clear from this initial burst of cooperation. Although there may be a variety of bilateral cooperation agreements and arrangements - most notably the series of agreements between the likes of Australia, Canada, Israel, Japan, the US and the EU; informal cooperation on a case-by-case basis; and multilateral forums, providing the opportunity for competition authorities to meet and talk about competition policy issues - they lack the participation of all those with a legitimate interest in the development of competition policy. This is where real value can be added to the role of a new global initiative which will complement the work of existing forums: the business community, with its unique insight into the costs now being imposed by multiple processes; consumer groups representing those whose interests competition laws are designed to protect; the legal profession, which deals with antitrust laws on a daily basis - they all have a legitimate role to play and can help to provide the infrastructure and other resources needed to assist on a practical level.
The greatest difficulty with a good idea is often in its implementation. At the moment, there is still a danger that the new network will be another talking shop, but without the ability to bring about reform. The legal profession should watch developments closely and continue to lobby for a strong voice in these discussions, which will shape the future of global competition policy.
Rachel Youngman is the former deputy executive director of the International Bar Association in London