On March 25, 2014, the Canadian Competition Bureau (Bureau) and
the United States' Department of Justice's Antitrust
Division (DOJ) and Federal Trade Commission (FTC) published a document describing their best practices on
cooperation during the review of cross-border mergers (Best
Practices Document). The Best Practices Document reflects the
current practices of the agencies when cooperating on the review of
cross-border mergers and provides guidance to merging parties to
facilitate such cooperation.
The implications for businesses are as follows:
close coordination and advance planning between Canadian and
U.S. counsel is critical in cross-border mergers;
antitrust agencies in Canada and the U.S. should be apprised of
the progress of reviews being conducted in the other jurisdiction;
coordination and cooperation between the Canadian and U.S.
agencies is particularly important in cases where remedies may be
imposed, as such cooperation may speed the resolution of the
agencies' reviews and ensure a consistent outcome.
The Best Practices Document is the first publication by the
Canadian and U.S. agencies specifically addressing the interaction
of their merger review processes. It acknowledges that when the
Bureau and a U.S. agency are reviewing the same merger "both
have an interest in reaching, insofar as possible, consistent
analyses and outcomes," while also noting that differing
market conditions in both countries may nevertheless result in
different outcomes. Given this shared interest, the Best Practices
Document notes that cooperation can increase "the efficiency
of the merger review process and reduce the burden on merging
parties. . . ."
The remainder of the Best Practices Document describes how the
agencies cooperate at different stages of the procedure, and how
merging parties can facilitate such cooperation and the benefits
that might accrue to merging parties. Highlights include:
Emphasizing Frequency and Closeness of
The Best Practices Document describes how routine and systemized
cross-border cooperation has become, noting that in cross-border
merger cases the agencies will "ordinarily . . . contact one
another promptly" and that the "relevant staff typically
seek to agree on a tentative timetable for regular inter-agency
consultations, which takes into account the nature and timing of
The Best Practices Document notes that "efficient
investigatory coordination will benefit the merging parties, third
parties, and the reviewing agencies." To this end, it provides
that "the agencies may, where possible, seek to coordinate
[U.S. second requests and Canadian supplementary information
requests], whether before or after issuance, by aligning language,
relevant search periods, custodians, data formats, and other
aspects of those requests."
The Best Practices Document provides that the agencies
"strive to ensure that the remedies they accept do not impose
inconsistent or conflicting obligations on the merging
parties." To avoid such conflict, the Best Practices Document
provides that "the reviewing agencies will, at minimum, seek
to keep one another informed of remedy discussions. . . ."
Moreover, the Best Practices Document provides that the agencies
will cooperate throughout the remedial process." Importantly,
it provides that "when consistent with its obligations to
resolve competition issues in its own country, the reviewing agency
may take into account the extent to which remedies obtained in the
other fully address its concerns."
Role of Parties
The Best Practices Document explains that merging parties can
facilitate cooperation, and that such cooperation may benefit
merging parties. It notes that the U.S. agencies require waivers to
cooperate fully with the Bureau, and that "it has become
routine practice for parties to grant [such] voluntary waivers. . .
." The Best Practices Document advises that coordination can
be facilitated by aligning the Canadian and U.S. merger procedures.
This could include submitting notifications in both countries
simultaneously, aligning the timing of compliance with Canadian
supplementary information requests and U.S. second requests, and
coordinating the timing and substance of remedy proposals being
made to agencies in both countries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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