Expert Calls for Convergence in Jamaica’s Merger Review Laws

United States Anti-Trust expert and Corporate Attorney, Joseph Krauss, has called on Jamaica to be a leader in working towards regional and global convergence, as the country considers adopting merger review laws.
The call came as he delivered the 9th Annual Shirley Playfair Lecture on Wednesday (September 10), at the Knutsford Court Hotel in Kingston.
“Countries standing on the cusp of adopting regulatory schemes can be leaders in this convergence effort [and] would benefit from giving serious consideration to adopting any or all of the recommended best practices,” said Mr. Krauss. This he said, includes coordination and information-sharing among various jurisdictions, respect for national sovereignty, transparency, fairness, and an efficient and timely review process.
Convergence is defined by the International Competition Network (ICN), a membership body devoted to enforcing competition laws, as “achieving consistency in antitrust law, policy, processes, and economic theory across jurisdictional lines.” It reduces the burden of merger review laws on the business community, as well as limits costs to regulators.
According to Mr. Krauss, the best way to do so is to “model notification requirements, review procedures and substantive law after more established merger review regimes,” pointing out that “even the United States, the European Union, and other countries with mature anti-trust regimes have committed to the convergence of global competition policies and laws, working through the forum of the ICN.
Turning to the benefits of convergence, Mr. Krauss cited the ICN’s view that “global firms spend less time and money on compliance and can devote more of those resources to the business of competition and innovation.”
“Conforming to merger reporting procedures”, he added, “we’ll give the business community confidence that the proposed procedures will operate efficiently to internationally recognised standards,” and that it will “avoid the political conflict that can occur between countries, when their merger regulators reach conflicting decisions on the same merger.”
There are many possible areas of convergence he stated, including notification thresholds, pre-merger notification forms, initial information requirements, review periods, remedies, transparency, confidentiality, and substantive law, which may include the use of market shares, thresholds, presumptions, safe harbours, entry and expansion.
“While convergence makes it easier for companies to assess the regulatory hurdles and costs of a merger, it is not a guarantee that every national regulatory authority will act as expected,” Mr. Krauss noted, adding that “even mature anti-trust regimes with well-established guidelines to govern their merger review process, sometimes engage in analyses and reach decisions that confound observers.”
Mr. Krauss pointed out that companies will always face the risk that any jurisdiction could thwart their proposed transaction and inhibit their merger plans, and that this risk increases, as companies are required to engage in multiple filings for global mergers.
However, he said that this should not stop the move towards regional and global convergence, as this in itself would deter countries from undertaking anti-competition activities.