FOREWARD: Mergers, Market Access and the Millennium
Foreword
FOREWARD: Mergers, Market Access and the Millennium
Eleanor M. Fox 0 1
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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)