Introduction
International mergers and acquisitions entail mergers and acquisitions at the international level involving different countries across the globe. They are also known as global mergers and acquisitions or cross-border mergers and acquisitions. These types of mergers and acquisitions are becoming a common feature at the global scene especially due to globalization, extensive international financial reforms, innovation and development in the information technology industry, and other developments that are opening up in the global markets. In 1999, more than $3.4 trillion was spent on mergers and acquisitions worldwide. In the financial industry, Travelers’ Group and Citicorp formed a merger, which was priced at $ 35 billion, and the one between NationsBank and Bank of America, priced at $62 billion. In the telecommunications industry, Vodafone Airtouch plc and Mannesmann AG merged at $ 140 billion and in 2003, Olivetti SpA merged with Telcom Italia SpA at $35 billion; in addition, there have been mergers and acquisitions in the food manufacturing and distribution industry, defense industry, airlines, and pharmaceutical companies among others (Hamner 2002, p. 386). Mergers and acquisitions occur when a certain strategic interest is recognized at a particular market and the related firms seize the opportunity to join and become one. In the process, they are likely to profit in terms of economies of scale as well as obtain market dominance. However, this could have negative effects on the consumer population as the attaining of a dominant position means that the possibility of being a monopoly is real and with that possibility attaches several risks including anticompetitive practices such as restricting output, setting high barriers to entry, and high pricing of goods and services at the expense and detriment of consumers. Therefore, the competition law seeks to redress and prevent these economic malpractices to ensure fairness and protect consumers from exploitation that comes with monopoly. The major causes for mergers and acquisitions include:
- Tariff drops-in the past two decades alone, tariffs have dropped from 40 percent to 6 percent and with the continuing trend of free trade agreements regionally and internationally, the tariffs are likely to become negligible. Additionally, reduced national trade and reduction of investment barriers have seen to the globalization of trade and with that, a shift from multi-domestic markets to global markets.
- A drop in transportation costs as well as in the cost of transacting information has resulted in the opening up of international channels for trade. For instance, railway transportation has recorded a 30 percent drop in travel charges within the last decade and truck transportation recorded a 23 percent drop between 1991 and 2001. Airline transportation has consistently registered a three percent drop each year for the past three decades and with the advancement of the Panama Canal that is underway, shipping charges shall plunge downward by 2014. The result of all these developments is cost savings. Consequently, investors have increased capital that they use to increase their market reach through various ways including market expansion through mergers and acquisitions.
- Innovations in the information technology industry (IT) have led to the shortening of supply chains and made international access a lot easier. By 2002, the net Internet commerce sales (or e-commerce) tipped $600 billion. All these factors have resulted in the global industry and markets acquiring a more attractive look than that of the domestic markets.
As far as mergers and acquisitions are concerned, the relevant law is competition law or antitrust law, depending on the relevant jurisdiction. The main task cast on legislators and administrators is the prevention of monopolization of trade, which is a real possibility when a merger or acquisition occurs. This assertion holds because the risk of the surviving firms taking over the market and ousting the weaker firms is real. In such a case, the consumers are at a disadvantage because the survivor firms increase monopoly profits that take the form of increased costs of products. Additionally, the firm is likely to restrict outputs in order to force consumers to purchase theirs at exorbitant prices. Consequently, “anti trusts legislators need to determine beforehand whether the merger or acquisition is likely to have anticompetitive effects that outweigh the advantages of economies of scale or scope” (Hamner 2002, p.388). After such determination, it is safer to allow or disallow an imminent merger and acquisition. Such pricing is the opposite of what can be termed as normal pricing, which subsists at equilibrium in a competitive market. Mergers and acquisitions are normal occurrences in the business arena with each case featuring unique circumstances that could affect stockholders’ wealth reserve. They are an efficient tool of market entry in the international arena and they benefit the country by stimulating Foreign Direct Investment (FDI). Several varied factors affect mergers and acquisitions including corporate governance, company acts, the legal structure of the country, capacity of average workers, consumer expectations, the political climate of a country, and traditions and cultures of a country. All these should be taken into account before finalizing a merger agreement (Economy Watch 2012).
International Business laws regarding mergers and acquisitions
It would be ideal if there were a uniform convention in charge of the administration of international antitrust laws, which is the jurisprudence that covers acquisitions and mergers. However, such a body of laws is non-existent and so the various nations of the world are left to their own systems. In this case, it means that each nation may or may not have antitrust laws that guide its practices and beyond this assumption, there are regional bodies, such as the European Union, which have successfully made an umbrella of antitrust laws to govern their member states and those states involved in trade with EU nation. Beyond that umbrella, each nation operates with its laws and in case of a dispute, the only established international body that hears disputes on antitrust is the European Court of Justice (ECJ) although non-members of the EU each have to consent to its jurisdiction over the matter. Consequently, international law on mergers and acquisitions is best studied jurisdictionally.
Michael Porter defines a global market as “an industry in which a firm’s competitive position in one country is significantly affected by its position in other countries and vice versa” (Porter 1986, p. 3). This scenario is opposed to multi-domestic markets in which competition in markets in one country is significantly removed, hence independent of other markets in other countries. Therefore, international markets are more favorable. As noted above, in this context, “mergers and acquisitions come in handy as tools for market penetration, achieving greater economies of scale, and scope, and serving global consumers more efficiently” (Hamner 2002, p.388). It is noteworthy that the globalization of industries further complicates the definition of geographic and product markets. An example of this conundrum comes out clearly in the financial industry where deregulation has culminated in substantial consolidation; that is, the formation of mergers and acquisitions. However, other players or competitors have also joined the banking industry in the form of insurers, brokers, and members of the security industry. As such, it becomes difficult to assess the financial industry from a one-dimensional perspective due to such an oligopoly market structure that is not unique to the financial industry. Additionally, such a structure raises the risk of the creation of cartels by threatened firms to restrict outputs and regulate pricing, which are contrary acts to fair trading. This problem of analysis befalls antitrust legislators and administrators, who are faced with the uncertainties that are commonplace in the analysis of international economies. Moreover, various nations have various antitrust laws that differ in subject matter and provisions and at an international level, there is a need to reach a uniform application that will be acceptable to all parties.
However, these legislators find respite in the fact that although jurisprudence may differ, most nations seek to address certain standard objectives that revolve around:
- Protecting consumer interests in an open and free trade market
- Preventing anti-competitive practices that lead to unjust enrichment
- Prevention and regulation of monopolies.
However, the problem that arises at an international level is that it is not usually the consumers that put pressure on legislators for instance to increase imports. Instead, domestic producers, who are constantly dissatisfied with the measures in place regarding foreign competitors’ products in the local market, always pressurize legislators to take the necessary measures.
The USA
Initially, “antitrust legislation aimed at controlling the concentration of economic and industrial power” (Hamner 2002, p.390). This aspect meant that the emphasis was on the protection of competitors rather than the competition, and thus it did not matter even if to obtain this desired equilibrium consumers had to pay through their noses. The objective was to ensure equality among businesses in order to enhance competition. The key focus was on equalizing small businesses to larger corporations and the core values used as the basis for this belief were freedom of individual choice, distributive justice, and pluralism.
Later, this objective changed and the new goal envisaged by antitrust law legislators was the achieving of economic efficiency. This change came in the late 1980sand the distinct feature of this new wave was the total disregard of smaller firms’ inability to compete with the efficiency of larger competitors. The new antitrust laws left it to market forces to determine the success of firms and in effect, it was concerned with the protection of “competition” as opposed to competitors. The industry was left to find its equilibrium level of concentration through the maximization of the benefits accruing from the economies of scale. Judging by this background, it becomes clear that such a legal framework’s antitrust laws are less likely to perceive mergers and acquisitions as anticompetitive because their main objective is the protection of competition and not competitors.
The statutory provisions for antitrust are contained in section 7 of the Clayton Act, 15 U.S.C. § 18 (1994) and in the Sherman Antitrust Act, 15 U.S.C. §§ 1-2 (1994). These acts state, “Every contract combination or combination that restrains trade or commerce among the states or with a foreign nation is illegal and every person who monopolizes or attempts to monopolize is guilty of a felony” (Snyder 2007, p. 123).
In the USA, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) are the central authority bodies that are responsible for the enforcement of antitrust law in the country. They are constantly dealing with breach of competition law by foreign parties or firms and in such cases, “the applicable standard comprises a reasonableness test that considers the degree of conflict with foreign law or articulated foreign economic policies” (Hamner 2002, p.396). As shall be noted hereafter, this position is different from that of the common law, as the reasonableness test is not applied at the common law level.
Finally, US antitrust legislation enforcement measures feature pre-merger approval and notification requirements as per the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (Porter 1986, p. 340). According to this Act, before a merger is completed, either DOJ or FTC should review the agreement on a lookout for anticompetitive effects. This move is probably necessary because it reduces costs that would otherwise be associated with reversing a contrary merger as well as the remedial damages associated with faulty mergers.
Europe
In Europe, competition law aims at preventing abuses of dominant market positions more than it is intended to prevent structural concentrations of economic power, as was initially the case in the US (Griffin 1999, p.159). The argument here is that market concentrations may grant an economy the obvious advantages of economies of scale yet fighting mergers in order to decentralize large business concerns, which at times results in more costs than anticipated, and this aspect could as well outrange the accrued benefits. However, this perspective is just a superficial argument given that by the time of conceptualizing this directive, “the Europeans were opposed to economic decentralization because of its similitude to the measures applied by the US troops (occupation forces) after the World War II when the Axis powers lost to the Allies” (Hamner 2002, p.392).
Competition law in Europe was first enacted in the Treaty of Rome in 1958. However, subsequent amendments resulted in the creation of the Treaty, which established the European Community and therein their antitrust legislations. Article 85 serves the same purpose as “the Sherman Act, which is to prohibit agreements and concerted practices affecting trade among European Union members or in any way distorting competition (Hamner 2002, p.393). On the other hand, Article 86 mirrors the “policy objectives contained in the Clayton Act and it prohibits the abuse of a dominant market position through the setting or establishment of unfair trading conditions pricing, limitation of production or restriction of output, tying, and dumping” (Hamner 2002, p. 396).
Latin America
Before 1990, antitrust was not an important matter for industrial policy within Latin America. However, in post-1990 after the collapse of the Soviet Union, most governments in this region had suffered economically and were now trying to turn from centrally planned economies, which were mostly state-controlled to market reforms and liberalization of economic policies (Bebchuk 2002, p.45). These nations felt that the measures would prove fruitful in the resuscitation of their fallen economies.
Enactment of Competition laws
The following is a list of various countries in Latin America and the years that they enacted their competition laws:
Argentina 1980, Brazil 1994, Colombia 1992, Chile 1979, Costa Rica 1994, MĂ©xico 1992, Panama 1996, Peru 1991, and Venezuela in 1991
Mexico, Panama, and Costa Rica modeled their antitrust legislation after the NAFTA model, which is close to the US and Canada versions. By statute, the Federal Competition Commission in the antitrust enforcement agency in Mexico and similar bodies enforce the competition laws within the rest of the Latin American Region. These laws assume the authority to challenge mergers ad acquisitions that have the effect of diminishing, impairing, or impeding competition and free market access. The rest of the Latin American nations have modeled their antitrust legislation after the European Union countries and the effect of this move is that they penalize the abuse of a dominant position rather than an attempt to monopolize (Scott & McConnell 1983, p. 378). Additionally, they predict this abuse on the degree of concentration of the market as well as gauging the level of barriers t entry.
Case law
United States v. Aluminum Company of America 148 F.2d 416 444 26 Cir 1945
Parties
The plaintiff instituted the suit against 63 defendants, and 10 were not served, one who had died by the time of the appeal, and one who was a corporate and had broken up by the time the suit was filed. In total, at appeal, there were 51 defendants and the judge divided them into four analogous groups as follows: 1) Alcoa, comprising of the Aluminum Company of America, directors, subsidiaries, officers, and shareholders. 2) Limited comprising of Aluminum Limited directors, officers, and shareholders; 3) Aluminum Manufacturers Inc., a subsidiary of Alcoa; and 4) Aluminum Goods Manufacturing Company, which is independent of Alcoa. It was an action by the United States against the Aluminum Company of America and others.
Issues
The plaintiffs were seeking:
- Adjudication that the Aluminum Company of America was “monopolizing interstate and foreign commerce, and that it should be dissolved” (Snyder 2007, p.119), (the issue is whether Alcoa monopolized the market in Virgin Aluminum and (consequently whether Alcoa was guilty of the various unlawful practices ancillary to the monopoly allegedly created)
- “To determine whether this defendant and the defendant of Aluminum Company, had entered into a conspiracy in restraint of commerce and for other relief under the Sherman Anti-Trust Act, Sec. 4, 15 U.S.C.A. 4” (Snyder 2007, p.119). (Moreover, the issues here were whether Alcoa and Limited were in an unlawful conspiracy and if not, whether Limited was guilty of conspiracy with foreign purchasers, and finally, what remedies were available in case of each defendant who was found to have violated the Act.)
The outcome of the District Court
The judge dismissed the complaint on July 23, 1942, after the claim having stayed in court since 1938 holding that no monopoly had been established and the respective companies had not entered into unlawful conspiracies and as such did not award damages.
Supreme Court decision
While reversing the lower court’s decision, the Supreme Court established what has come to be known as the “effects test”. Judge Learned Hand succinctly stated:
The United States has jurisdiction and can apply its antitrust laws where wholly foreign conduct had an intended effect in the US. This allows the court to balance US interests with interests of the foreign nation and foreign relations to determine where the effects are substantial enough to grant jurisdiction and application of US antitrust laws (Snyder 2007, p. 123).
By citing the decision in Strassheim v. Daily, 221 U.S. 280, 284, 285, 31 S.Ct. 558, 55 L.Ed.735, the court maintained, “…any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends; and these liabilities other states will ordinarily recognize” (Jarrell 1985, p.167).
This line of thinking has been sustained in different jurisdictions even in the European Commission, which is the enforcer of European antitrust laws in making laws or interpreting its antitrust laws in a manner that directly affects another non-member state’s affairs even though the respondent or defendant does not hold branches and subsidiaries in the European Union. This aspect is possible because the European Union purchasers would be adversely affected by the unfair competition garnered by such parties.
Case NoCOMP/M.1741-MCI WorldCom/Sprint
Parties
MCI Worldcom and Sprint were both global telecommunications companies. MCI Worldcom is a global provider of facility-based local, long-distance free phones, debit cards, credit cards, and Internet services. Sprint on the other hand is based in the USA and it specializes in long-distance and wireless Internet services. This merger was an example of a company (MCI) breaking into or penetrating the USA market through a merger.
The European Commission Decision
This undertaking represented a merger between parties that were responsible for an aggregate worldwide turnover of more than EUR 5 billion. Both companies had “extensive networks and larger customer bases and a merger would likely push them into restricting the terms and conditions necessary to access Internet networks” (Hamner 2002, p.396). The EC held that this merger was incompatible with the capital market and thus disallowed it, as it would create a monopoly within the telecommunications industry (Cohen 2012, p. 3). It is noteworthy that the European Commission’s investigation of this case, in which both parties were American corporations, was carried out in close collaboration with the USA antitrust agencies, viz. FCT and DOJ. This aspect means that although at times the European Union and the US may appear to be at loggerheads over interpretation issues concerning antitrust laws, they have the same desired end and can work together for development in the international arena.
Case No COMP/M.1795 – Vodafone Airtouch / Mannesmann
The parties to this pre-merger notification request were Vodafone Airtouch Plc, a UK-based company that specializes in operating mobile telecommunication apparatus and offering related telecommunication services. At the time, “it had interests in 24 companies worldwide including in the US and it is listed in the London and New York stock exchanges” (Hamner 2002, p.397). At the EU level, it had interests in 10 EU-based mobile telecommunications companies. Country-wise, it had majority interests in the telecommunications industries of the Netherlands, Sweden, Portugal, Greece, and the United Kingdom. It had minority interests in the industries in France, Spain, Italy, Belgium, and Germany.
Mannesmann was German-based and it transacted in both engineering and telecommunications services (Scott & McConnell 1983, p.389). It had joint ventures in the UK, the US, and Austria and minority interests in Germany and Italy. At the time of this proposed concentration, Mannesmann had only just recently acquired Orange Plc after consenting to let go of the minority shares of Orange in Connect Austria. Orange specialized in Internet networking in the US and the UK.
The European Commission Decision
The commission consented to this merger, but it did so only to subjects to some strict conditions. For instance, the undertaking was limited to three years and the parties were to submit a written report to the commission every three months or within 28 days of the commission’s request of the report indicating the state of the undertaking in compliance with antitrust laws. Finally, “the commission mandated that Universal Mobile Telecommunication Systems licenses were to be awarded to the public in sufficient numbers to allow for sufficient competition build-up to replicate the Vodafone network” (Hamner 2002, p.396).
Case No COMP/M.1672 – Volvo/ Scania merger
Volvo is a Sweden-based company and it specializes in the manufacture and sale of trucks, buses, marine and industry engines, construction equipment, and airspace components. On the other hand, Scania is a Swedish company that is involved in the manufacture of heavy trucks and buses, marine, and industrial engines. Additionally, it holds 50 percent of Svenska Volkswagen AB, which is in charge of the importation, marketing, and distribution of private cars and light commercial vehicles in Sweden.
The EU commission’s decision
The concentration was “incompatible with the functioning of common markets and the EEA agreement” (Hamner 2002, p.397). The commission found that even if the succeeding company complied with the proposed undertakings for ensuring fair trade, it would still attain a dominant position in the heavy trucks markets in Ireland, Finland, Norway, and Sweden. Additionally, it would obtain a dominant market for intercity buses in Finland, Denmark, Ireland, and Norway. As such, the commission objected to the merger. Sweden is a European Union member and this was a manifestation of the application of the European Union authority within its membership (Bebchuk 2002, p.46). This element is noteworthy because in the past when the EU was busy fighting antitrust infringements in the US that threatened the open market for European purchasers, critics were fast to opine that the European Commission’s only interest was the US businesses. Moreover, the critics maintained that the European Union was seemingly threatened by the US success hence the preoccupation with competitive activities in the US. However, cases like this invalidate these sentiments and prove that the EC was merely dealing with resultant circumstances of attempted breaches of antitrust laws as they occurred. Additional cases within the EU include the Renault / Volvo Merger that was between French and Swedish Automobile Companies. The EC conditioned its approval of this merger upon the agreement of Volvo to sell its minority stake in Scania, which was its major competitor in Scandinavia. Another merger was between Nestle and Perrier, both French firms. The EC conditioned its approval on the merger on several intensive agreements whose effect was to decentralize the Sprig water market to ensure that it remained competitive.
The case of European Communities Wood Pulp OJ 1985 L 85L
Several “Finnish, American, Swedish, and Canadian wood pulp producers established outside the EC colluded as price cartels to hike prices on the wood pulp that they eventually sold to EC purchasers” (Jarrell 1985, p.174). The jurisdiction of the EC derived from the fact that these parties’ actions affected members of the EC as more than 60 percent of wood pulp distributors in the EC was affected.
One of the defendants, the US Export Association, argued that the EU competition laws “were in breach of the Public International Law duty of non-interference, citing that the US government’s policy was to exempt exporters from the US antitrust laws to further the policy goals of encouraging exports” (Hamner 2002, p.394). The European Commission Jurisdiction rejected the argument holding that the “Webb –Pormene Act in the US law merely exempted cartels within the US from the US antitrust laws and thus it did not provide for the US-exempted anticompetitive activities to be implemented in the European Union” (Griffin 1999, p.159).
The Boeing Company (“Boeing”) and McDonnell Douglas Corporation (“McDonnell Douglas”) merger
This case is a historical merger that provided a net worth of more than $48billion. The Douglas Company and Boeing are US-based civilian jets. The Douglas Corporation was the major competitor for Boeing in the US, but it was rather small and it was undergoing financial difficulties. A merger would enhance the efficiencies of the flight industry as well as prevent large-scale layoffs that were a guarantee of the corporation winding down. However, Airbus, an EU based airliner, was likely to suffer anticompetitive effects if this merger proceeded unchallenged because it was the world’s second-largest airliner after Boeing, and this merger was going to boost Boeing’s customer base from 60 percent to 84 percent of planes in worldwide services (Karpel 1998, p.1039). Consequently, the EU declined to approve the pre-merger request forms, and eventually Boeing had to consent to withdraw from several long-term contracts with the European Union-based airlines. In fact, “this move was just a pretense to improve the competitive landscape between Airbus and Boeing, but the EU accepted the deal and approved the merger” (Hamner 2002, p.395).
This case highlights the possible controversies that emerge in the international arena concerning the extraterritorial interpretation of the competition law and application of the same. Different enforcement agencies, for instance, the US-based DOJ and FCT versus the European Commission of the European Union are likely to 1) “define the markets differently. 2) Weigh the possible anti-competitive effects against the envisaged efficiency gains differently; 3) view the effects of the merger on the competitive landscape differently; and 4) disagree concerning the appropriate remedies” (Hamner 2002, p. 404).
In the Boeing / Airbus case, the merger favored the US because it would require the foreigners to cushion the adverse effects of anti-competitive measures in the form of customers outside the US paying more, whereas the US would reap all the efficiency gains. This aspect would be in the form of the benefits accruing to the national welfare such as increased tax revenues and high employment ratios within the US. The opposite was true for Airbus because they would miss employment opportunities and tax revenues.
Interestingly, the European Union’s move in this particular case was more of a preemptory regulation as it was conducted through the rejection of a pre-merger notification bid rather than being instituted as a penalty after the abuse of a dominant position after detection (Karpel 1998, p.1068). This reaction mirrored that of the US antitrust laws. However, this case is not the first time that the European Commission has acted in such away. In 1996, it blocked a merger proposal between the UK-based Lonrho PLC and the South African Based Gencor. The merger would have resulted in a duopoly in platinum and rhodium markets. This ruling is a shift in the EU’s antitrust law as initially, it took a behaviorist approach by punishing abusers of market dominance posthumously, but this case is a structuralist approach as it involves an intensive investigation of market structures and the potential post-merger effects before issuing merger approval.
Conclusion
This paper has analyzed the trend in antitrust laws internationally as far as they pertain to mergers and acquisitions. The development of global commerce has resulted in a multiplicity of these transactions and the need to regulate them has been satisfied by national and regional legal organs such as municipal courts in the US, and the European Court of Justice respectively. It is also interesting to note that states like China do not have any constructive legal framework to deal with competition law breaches. However, due to the rarity of industries in China, competition law is still not an essential requirement. Additionally, in the international arena, it is necessary to formulate a uniform body of laws that will regulate competition in a standardized format; a body of laws that resemble TRIPS (Intellectual Property), TRIMS (Investment), or GATT in a bid to coordinate antitrust laws in the global arena (Snyder 2007, p. 123).
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