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Publications (merger specific)

For all my competition law publications see Australian competition law

For all publications see Julie Clarke - Publications

Merger publications

Book

Julie Clarke, International Merger Policy: Applying Domestic Law to International Markets, Edward Elgar Publishing (April 2014)

Publisher description: International Merger Policy offers a compelling comparative assessment of domestic and regional merger laws and procedures. Identifying important areas of convergence and emerging best practice, it considers existing levels of international cooperation and highlights the key costs associated with transnational merger review before evaluating possible mechanisms by which they might be reduced.

Presenting a holistic comparative treatment of competition law merger regulation and a discussion of policy justifications for merger regulation, this authoritative study tackles the significant challenge of how the costs and conflicts associated with overlapping applications of national merger regimes should be managed. It provides an assessment of areas of convergence and emerging best practice in the national and transnational treatment of mergers, as well as of the state of cooperation and comity in the treatment of transnational mergers. Finally, it offers an evaluation of costs and benefits of the current system of transnational merger regulation, in addition to an examination of proposals for reducing the existing cost burden.

The book examines emerging best practice and evaluates the merits of various reform proposals, thus will be of great use to policy makers and competition agencies. It also provides a useful rounded review of key issues surrounding merger policy and practice. Therefore, this book is ideal for researchers and students in this field.

Thesis

The International Regulation of Transnational Mergers (PhD Thesis, Qld UT, 2010)
Transnational mergers are mergers involving firms operating in more than one jurisdiction, or which occur in one jurisdiction but have an impact on competition in another. Being of this nature, they have the potential to raise competition law concerns in more than one jurisdiction. When they do, the transaction costs of the merger to the firms involved, and the competition law authorities, are likely to increase significantly and, even where the merger is allowed to proceed, delays are likely to occur in reaping the benefits of the merger. Ultimately, these costs are borne by consumers. This thesis will identify the nature and source of regulatory costs associated with transnational merger review and identify and evaluate possible mechanisms by which these costs might be reduced. It will conclude that there is no single panacea for transnational merger regulation, but that a multi-faceted approach, including the adoption of common filing forms, agreement on filing and review deadlines and continuing efforts toward increasing international cooperation in merger enforcement, is needed to reduce regulatory costs and more successfully improve the welfare outcomes to which merger regulation is directed.

Articles

Julie Clarke, ‘Multi-jurisdictional merger review procedures: a better way’ (2006) 14 Trade Practices Law Journal 90-109
Corporate mergers whose effects transcend national borders have faced increasing regulation over the past few decades as more jurisdictions have developed merger laws and imposed pre-merger notification requirements. The level of regulatory response to multi-jurisdictional mergers is likely to continue to increase as even more jurisdictions contemplate the introduction of competition laws. This level of regulation now goes beyond that required to protect national economies from potentially harmful mergers and has seen burgeoning costs to business, regulators and, ultimately, the public. In recognition of this, the relatively newly formed International Competition Network has placed merger regulation at the forefront of its agenda for greater harmonisation and cooperation in competition law. This has seen, over the past three years, the development of a set of guiding principles and recommended practices for merger notification procedures designed to reduce the regulatory burden. This article evaluates these recommendations and discusses areas for further reform.

Julie Clarke, 'The Dawson Report and Merger Regulation' (2003) 8(2) Deakin Law Review 245
The Dawson Report, released by the federal Government in April, recommended significant change to merger regulation in Australia. While retaining the substantial lessening of competition test, the Report calls for change to the merger clearance and authorisation processes. The recommendations have received the support of the Government and big business, but have attracted criticism from the ACCC, small business and consumer groups. This paper will critically discuss the recommendations in light of the public submissions made to the Review.

Julie Brebner, ‘The Relevance of Import Competition to Merger Assessment in Australia’ (2002) 10(2) Competition and Consumer Law Journal 119-143
Abstract: The Australian Competition and Consumer Commission has been criticised for failing to take due account of the impact import competition has on domestic firms when assessing whether or not a proposed merger will be likely to substantially lessen competition.  This paper reviews the approach taken by the Commission to import competition in its merger assessments.  Consideration is given to both the policy adopted by the Commission and the statistical relevance that has, in fact, been placed on import competition in merger assessment. A conclusion is then drawn as to the appropriateness of the Commission’s current policy and practice.

Notes

Australian Competition Tribunal grants first direct merger authorisation (Macquarie Generation, AGL Energy) (18 September 2014, e-Competitions (N° 68908, www.concurrences.com))
On 25 June 2014 the Australian Competition Tribunal (Tribunal) handed down its first direct authorisation decision, approving the AU$1.505 billion acquisition by AGL Energy Limited of the assets of Macquarie Generation (MacGen), a state-owned corporation (AGL-MacGen). The authorisation decision followed advice from the Australian Competition and Consumer Commission ( ACCC) that it would oppose the proposed deal. The Tribunal disagreed with the ACCC’s assessment of the likely anti-competitive impact of the merger and also considered that there were public benefits associated with the proposal that justified allowing it to proceed. On 3 Sept 2014 AGL announced it completed the $1,505 million acquisition of MacGen assets from the NSW Government. (view on e-Concurrences)

Conferences and seminars

The Challenge of International Merger Regulation, Institute of Advanced Legal Studies, London (27 Feb 2013)
The seminar discussed the current approach to regulating transnational mergers in a competition law context. A merger is considered transnational if it has the potential to impact upon competition in more than one jurisdiction. The proliferation of pre-merger review systems over the past two decades has prompted several proposals for supranational solutions, ranging from proposals for an international law and adjudicative body to more modest proposals for soft harmonization. Although there has been an increase in the level of ‘soft’ harmonization, largely attributable to the work of the International Competition Network, significant differences remain and compliance costs continue to rise as more jurisdictions adopt pre-merger notification regimes. The seminar identifed key points of convergence and divergence between national merger regimes and whether or not it is possible or desirable to further streamline the current multi-national merger review process to improve economic and social outcomes.

International and comparative merger law; is there a need for greater convergence?', UQ Law Research Seminar Series, 7 September 2012, Brisbane
The seminar discussed the current system of regulating multi-jurisdictional mergers. A merger may be "multi-jurisdictional" because the parties are located in more than one jurisdiction, or because it has the potential to impact upon competition in more than one jurisdiction. The proliferation of competition laws and the significant increase in the number of countries now imposing pre-merger notification obligations has prompted several proposals for multi-jurisdictional merger reform, ranging from proposals for an international law and adjudicative body to more modest proposals for soft harmonisation. To some degree, the International Competition Network has, over the last decade, facilitated greater 'soft harmonisation' in the national approach to merger regulation, but inefficiencies still remain. The seminar discussed whether or not it is possible or desirable to further streamline the current multinational merger review process to improve economic and social outcomes. Podcast available.

Conference Paper: "Australian Merger Law Set For Change", Australasian Law Teachers' Association Annual Conference 2003, Novotel Hotel, Brisbane, 7 July 2003
Abstract: The way in which mergers are evaluated in Australia is set to undergo significant change in the coming year. The Review of the Competition Law Provisions of the Trade Practices Act (the Dawson Review) was released by the Government in April.1 While recommending the retention of the current substantial lessening of competition test, the Dawson Committee made a number of recommendations for change regarding the procedures to be applied in assessing potential mergers. These recommendations have received the support of the federal Government. This paper will critically discuss the recommendations of the Committee in light of the submissions made to the Review and will also consider the possible amendments to the TPA that may flow.