Non-competition Policy Considerations in Merger Control: A Growing Trend?

This year has seen non-competition considerations play a pre-eminent role in merger control in several countries. Few large businesses can claim nowadays never to have had completion of a cross-border merger affected by a merger review process. While some jurisdictions review mergers strictly on competition grounds, others attach a varying degree of importance to non-competition issues such as public interest, employment, national security and foreign investment. These non-competition issues may be contained expressly in legislation or may discreetly ‘creep’ into a supposedly competition-based merger analysis. Alternatively, they may appear when a transaction is directed to another regulatory authority for consideration.