Substantive convergence in merger control: An assessment

This article focuses on substantive convergence in merger controls, a topic of increasing importance and on which there is no unanimity. Two questions are discussed: First, how much substantive convergence has taken place over the last two decades? Second, how much more convergence is possible ? Based on work done in the context of the OECD and the ICN and on a detailed study of competition laws and merger control practices in various countries including China, South Africa and Brazil, this article shows that there has been a tendency towards convergence on merger control during the last two decades but that the level of convergence is uneven and very much depends on which substantive issue one focuses. It suggests that complete convergence is neither realistic nor economically justified. It argues that the remaining substantive differences between merger control regimes are often due either to differences in the economic characteristics of countries or to the presence of public interest clauses in merger control laws of some countries. It suggests a way to decrease the importance of public interest considerations in merger control laws to promote further convergence.

1. The question of how much convergence there is in competition law is controversial at best. David Gerber expresses the view that : “Given the relative weakness of its impetus factors and the obstacles that convergence face there is little basis for expecting extensive convergence to occur (at least in the near future) across wide ranges and dimensions of competition law and on a global basis.” (D. Gerber, Global Competition Law, Markets, and Globalization, Oxford University Press, p. 289). However, according to a number of practitioners and legal specialists either this view does not apply to merger control or David Berger misapprehended the amount of convergence going on. For example, Rachel Brandenburger and Joseph Matelis have argued [1] that there is a “generally convergent state

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  • ESSEC Business School (Cergy)


Frédéric Jenny, Substantive convergence in merger control: An assessment, January 2015, Concurrences N° 1-2015, Art. N° 71283, pp. 21-41

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