More than ever before, the increased cooperation between the antitrust authorities in various countries requires parties involved in global M&A transactions to devise a global strategy from the start. This concerns both, the seller and the purchaser. Merger control becomes more and more difficult and obtaining clearance is not easy, especially when it comes to international transactions.
One of the first steps in planning a strategy for an international transaction is to establish a globally coordinated team of experts who will deal with merger control issues and who will navigate the transaction through all of the jurisdictions involved. This team of experts could either be from a large international law firm, or formed from a network of independent high-quality law firms with international capabilities.
The second most important step is to adopt a well-thought-out strategy which will be followed from start to finish. The most successful strategy is to prepare a coherent antitrust plan (a story), identical for all the parties involved, suitable for submission before any of the respective national antitrust agencies. This would of course require prior review and legal analysis by the counsel appointed in each jurisdiction. Good coordination among the solicitors is vital to obtaining clearance.
Even if the antitrust story is solid, naturally it will not be sufficient for obtaining clearance. I cannot however tell you what would be the right approach to merger control in your case. It will depend on the circumstances and you will need to seek professional advice. While devising a global strategy for a relatively easy transaction may be simple, a more sophisticated approach will be required for mergers in difficult markets, especially if there are remedies in one or more countries.
There is no “one size fits all” solution but definitely, being pro-active is crucial. For maximum effect, the parties will need to think about all the issues upfront. The lawyers will need to decide whether it is better to start obtaining clearance in one jurisdiction and then use it to engage with other antitrust agencies, or whether to apply to all the agencies at the same time.
Everything depends on the circumstances. The parties must remember that when they supply data to one agency they are effectively supplying it to several others at the same time. This could be a benefit or a hazard – depending on the situation.