Alternative national merger standards and the
prospects for international cooperation
DANIEL J. GIFFORD AND ROBERT T. KUDRLE
The rapidly integrating world economy has generated calls for more cooperation in the area that Americans call “antitrust” and most of the rest of world terms “competition policy. ” 1 This surge of interest grew from several concerns. One strong impetus came from the failure of foreign firms to penetrate some domestic markets, despite the dramatic reduction in nominal barriers to trade and investment. Japan was the target of much of this criticism, and many complained of private collusion unchecked by effective public policy. A second impetus came from the determination of many scholars and policy makers to integrate trade and competition policy more closely in the reduction of “administered protection” directed against foreign firms who faced legal harassment to sales in domestic markets based on bogus economic argument and evidence. Both of these problems appear more likely to be solved through international pressure and agreement than through uncoordinated changes in public policy. Finally, there are growing issues more clearly attributable to the size and scope of international business. The quality and price of products sold in one market have come increasingly to depend on private action and competition policy pursued in other states.
This paper considers one important subset of this third group of concerns: merger and acquisition policy. States may be greatly affected by merger policies elsewhere even if the firms involved have no production facilities in the affected state. Some jurisdictions have responded by claiming a voice in the approval or rejection of mergers in other jurisdictions. The European Union (EU)'s determination to shape the terms of Boeing's acquisition of the civilian airliner production of McDonnell Douglas in 1997 provides the most well-known instance of this important new source of international conflict. Some are optimistic that future such conflicts can be avoided through increased cooperation. As this chapter will explain, most jurisdictions now view mergers from broadly similar economic perspectives, and mergers can be jointly considered without most of the problems of discovery____________________