Abstract
More and more mergers are reported nowadays in every sector of the economy all over the world. This trend has been strengthened as a result of the globalisation of the world economy. To cope with this phenomenon, competition authorities have been attempting to realise efficient and transparent merger control by amending their respective regulations or adopting guidelines thereto. This work timely produced by Professor Hiroko YAMANE at the National Graduate Institute for Policy Studies (GRIPS) focuses on the merger control practices of the US, EU and Japan.
In the introduction of the book, Professor Yamane emphasises the importance of “transparency” in merger control procedures with respect to the analysis and decision of cases and the analytical methods and criteria set up therefrom. According to the author, “transparency” under merger control regimes matters in (i) both substantial and procedural rules, (ii) the relationship between the competition authority and parties concerned in the decision-making process, and (iii) decisions of the competition authority. The author also mentions as analytical viewpoints economic reasonableness, usefulness to economic development, legal certainty, and expectations of the parties concerned.
After analysing in depth US merger control practices in Chapter I, Professor Yamane subsequently addresses EU practices in Chapter II. In this chapter, the author highly praises the painstaking efforts made by the European Courts (the ECJ and CFI) and the European Commission in establishing a transparent merger control regime since the enforcement of the Merger Regulation in 1990. Contributions made by private parties (both the parties concerned and third parties) should not be underestimated in the above-mentioned process.
In spite of the rapid growth of the Merger Regulation, however, the author lists several problems to be solved; (i) too much reliance by the Commission on the opinions of competitors in its decision-making, (ii) information exchange process between the Commission and the parties concerned, (iii) lengthy procedure in the CFI after a Commission decision, (iv) political intervention in the decision-making process, (v) improper use of information obtained by the Commission in its procedure, and other problems both in substantial and procedural aspects of the law (evaluation of economic theory, extra-territorial application of the Merger Regulation, etc.).
Professor Yamane nevertheless insists that there is much to learn from the US and EU experiences in improving the merger control regime in Japan. The author appreciates in Chapter 4 the recent trends witnessed under Japanese Antimonopoly Law, such as the procedural amendment and the revision of the merger guideline by the Japan Fair Trade Commission (JFTC). Even so, there remains the problem of transparency in the decision-making process because of the heavy reliance by the parties concerned on the informal pre-consultation procedure at the JFTC in which substantial decisions are made. The author thus casts doubts on the present practice when a transparent and open merger control regime is needed.
This work including detailed analyses of US and EU merger cases is highly recommended to those who are interested in the merger control practices in the US and EU, as well as in the status quo and problems of the Japanese merger control regime. Lastly I need to make mention of the useful materials made by Mr. Syuya HAYASHI, lecturer at Kobe City University of Foreign Studies on US, Japanese and EU guidelines, and flowcharts on the merger control procedures in Germany, France, UK and Canada.
