International mergers : Working across multiple jurisdictions
The control of transnational mergers and international cooperation procedures : The Brazilian experience
Alexandre Cordeiro Macedo Commissioner, CADE, Brasilia Professor, BrasiliaSchool of Law / IDP
1. The process of economic globalization has entailed a rapid increase in worldwide mergers and acquisitions over the last decades. Although this type of international transaction evidences economic expansion, it also raises several competition concerns, such as the multiple effects of these transactions on different international jurisdictions. Such multiple effects may require different assessments from each antitrust authority. Consequently, different decisions arise and there may be contradictory rulings with various remedies and results, which, apart from not addressing competition concerns properly, might often threaten the transaction in question.
2. When consulting the specialized literature regarding the subject, we may evidence attempts to provide a general and standardized solution to this matter. However, what is noted is the operational unfeasibility of all these standardized solutions. The proposal of a leader jurisdiction (either mandatory or optional) is based on certain preemptive measures for the jurisdiction that is likely to be more affected by the transaction. This model finds obstacles for its implementation, which range from the choice of the jurisdiction that would be the more affected to the requirement of international agreements that define who would choose the leader jurisdiction. The proposal of a unified jurisdiction based on specific rules applied to all jurisdictions may reduce transaction costs and the risk of contradictory decisions, but national sovereignty considerations may render this solution unfeasible.