FOREWARD: Mergers, Market Access and the Millennium

Northwestern Journal of International Law & Business, Dec 2000

The symposium issue is a nice microcosm of the competition law issues facing the world. It presents the tensions between national control and world integration. It presents the twin, conflicting impulses to eschew internationalization, hoping to do well enough by deepened positive comity (Waller), and to embrace internationalization at least cautiously to address concerns where unharnessed operation of national interests obstructs efficient solutions and where internationalization is most likely to sidestep the political landmines (Fiebig).

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FOREWARD: Mergers, Market Access and the Millennium

Foreword FOREWARD: Mergers, Market Access and the Millennium Eleanor M. Fox 0 1 0 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons 1 Part of the International Law Commons, International Trade Commons, Law and Economics Commons, and the Securities Law Commons - FOREWORD: Mergers, Market Access and the Millennium The global economy is no longer merely a prospect. In all of its untidiness, it has arrived. As Professor David Gerber astutely observes, in his review of Professor Spencer Weber Waller's Antitrust and American Business Abroad, international antitrust is no longer simply a study ofU.S. law and the limits of its extraterritorial reach. It encompasses law, context, values, and evolutionary paths of many nations. Good analysts must adjust their focus to the new economic and regulatory world, which demands deeper, broader, and more contextual understanding. The effective analyst needs to know more about international economic issues, how they tend to affect private and public institutions in many parts of the world, and how decision makers view these developments. Often the skills necessary to interpret these situations are as important as -- perhaps more important than -- the skills necessary to operate within the U.S. antitrust system. This symposium issue contains and conveys both information and ideas for building the new knowledge. The articles focus in particular on two emergent problems in the global economy -- market access and international mergers. The problem of market access emerges in the wake of . Eleanor M. Fox is Walter J. Derenberg Professor of Trade Regulation at New York University School ofLaw. lower trade barriers. As government restraints have receded, private restraints have emerged. Moreover, as globalization proceeds, the number of international mergers increases exponentially, as do merger control regimes. Any of some 40 nations may vet and delay the same merger, although it may be clearly harmless (95 percent of mergers are) and although some of the regulating nations may be small economies with no differentiated market and no real stake other than collection of a filing fee. The articles in this symposium issue are descriptive, synthesizing, and normative. The market access article of Professor Spencer Weber Waller has all three qualities. It provides a history and evolution of the law at the interface of trade and competition; a roadmap of the cooperative efforts of nations and their increasing density; and a cautionary word about the limits of antitrust in the quest for free markets; and it offers a prescription -- deepened diplomatic antitrust solutions. The article by Andre Fiebig addresses merger control. Mr. Fiebig is internationalistic in his approach and more ambitious in his vision for supranational coordination. Emphasizing the gross inefficiencies and superfluous overlapping multi-nation merger control systems, he makes a modest proposal: a premerger control office in the framework of the World Trade Organization for a limited purpose: "to assist business and regulators by identifying those transactions which present no threat to competition." Action of the office would be triggered only by the voluntary request of the merging parties. A mechanism would be provided for regulating nations to spring into action where their important interests would otherwise be impaired. By using methods of international coordination only to screen out harmless mergers, Mr. Fiebig proposes to sidestep the sovereignty debate and political opposition (especially by the United States) to international antitrust coordination in the World Trade Organization ("WTO"). A third essay, by Professor S.G. Corones, provides a multli-faceted indepth treatment of the Australian merger law and its jurisdictional reach. This essay is followed by an informative piece by William M. Hannay, providing helpful information for the corporate counselor on transnational aspects of mergers and acquisitions, substantive and procedural, in the United States, the European Union, and the EU Member States of France, Italy, Germany, and the UK. Concluding the collection, Professor Gerber's book review cautions us to adapt our perspectives to the new inter-active, multitiered world economy. The symposium issue is a nice microcosm of the competition law issues facing the world. It presents the tensions between national control and world integration. It presents the twin, conflicting impulses to eschew internationalization, hoping to do well enough by deepened positive comity (Waller), and to embrace internationalization at least cautiously to address concerns where unharnessed operation of national interests obstructs efficient solutions and where internationaliza (...truncated)


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Eleanor M. Fox. FOREWARD: Mergers, Market Access and the Millennium, Northwestern Journal of International Law & Business, 2000, pp. 203, Volume 20, Issue 2,