Merger control in the u s and pointers for vietnam s

116/2005/ND-CP detailing the implementation of a number of articles of the Competition law Draft Law The preliminary Vietnam Competition law draft 2nd draft HSR Act Hart-Scott-Rodino Ant

MINISTRY OF EDUCATION AND TRAINING

HCMC UNIVERSITY OF LAW -*** - MANAGING BOARD OF SPECIAL TRAINING PROGRAM

VÕ THỊ MINH THƯ

MERGER CONTROL IN THE U.S AND

POINTERS FOR VIETNAM

BACHELOR OF LAW – GRADUATION THESIS

Commercial Law Deputy Academic Year: 2013 - 2017

HO CHI MINH CITY YEAR 2017

MINISTRY OF EDUCATION AND TRAINING

HCMC UNIVERSITY OF LAW -*** - MANAGING BOARD OF SPECIAL TRAINING PROGRAM

VÕ THỊ MINH THƯ

MERGER CONTROL IN THE U.S AND

POINTERS FOR VIETNAM

BACHELOR OF LAW – GRADUATION THESIS

Commercial Law Deputy Academic Year: 2013 – 2017

SUPERVISOR: DR HA THI THANH BINH STUDENT: VO THI MINH THU

ID NO.: 1353801011233 CLASS: CLC38B

HO CHI MINH CITY YEAR 2017

ACKNOWLEDGMENT

Firstly, I would like to express my sincere gratitude for Dr Ha Thi Thanh Binh for the continuous support towards my thesis work Her dedication, patience and immense knowledge helped me complete this thesis in the best way possible

Besides my supervisor, I would like to thank Lecturer Pham Hoai Huan for his insightful comments and encouragement Without his initial guidance when I first took the thesis, I would not have found the topic so compelling and make an incredible work till now

My last respectful thanks goes to my family and my beloved ones who provided me though moral and emotional support in my life This has been a great journey for me and I am gratefully indebted to your support

DECLARATION

I hereby declare that this thesis is my own research under the supervisory guidance of

Dr Ha Thi Thanh Binh All of the information other than my opinions to be used or quoted has been acknowledged by means of complete references I would take full accountability for my protest

Ho Chi Minh City, 18 th July, 2017

Võ Thị Minh Thư

LIST OF ABBREVIATIONS

Decree 116 Decree No 116/2005/ND-CP detailing the implementation of a

number of articles of the Competition law

Draft Law The preliminary Vietnam Competition law draft (2nd draft)

HSR Act Hart-Scott-Rodino Antitrust Improvements Act

OECD The Organization for Economic Co-operation and Development SSNIP Small but Significant and Non-transitory Increase in Price

Guidelines

The 1984 Merger Guidelines

The Agencies The DOJ and FTC

The Guidelines The 2010 Horizontal Merger Guidelines

The ICN The International Competition Network

VCL The 2004 Vietnam Competition Law No 27/2004/QH11

TABLE OF CONTENTS

LIST OF ABBREVIATIONS

INTRODUCTION 1

CHAPTER 1: TYPES OF MERGER UNDER U.S ANTITRUST LAW AND POINTERS FOR VIETNAM 6

1.1 Types of merger under the regime antitrust law in the U.S and Vietnam 6

1.1.1 Types of merger under U.S Antitrust law 6

1.1.2 Types of economic concentration under Vietnam Competition Law 11

1.2 Shortcomings of Vietnam economic concentration regime 12

1.3 Experiences from U.S Antitrust law and pointers for Vietnam 14

CHAPTER 2: MERGER CONTROL MECHANISM UNDER U.S ANTITRUST LAW AND POINTERS FOR VIETNAM 18

2.1 Statutory notification thresholds 18

2.1.1 Pre-merger notification thresholds under U.S Antitrust law 19

2.1.2 Shortcoming of Vietnam economic concentration regime regarding premerger notification thresholds 19

2.1.3Pointers for Vietnam 20

2.2 Criteria for prohibition 23

2.2.1 Competitive effects analysis under U.S Antitrust law 23

2.2.2 Shortcomings of Vietnam economic concentration regime regarding criteria for prohibition 40

2.2.3 Pointers for Vietnam 43

CONCLUSION 50

BIBLIOGRAPHY

INTRODUCTION

1 The necessity of the research

In the current climate of globalization where the economy is in a constant state

of flux, businesses are seeking to stay competitive by means of expansion and trade One particularly effective way to do so is through merger - a transaction that brings about change in control of different business entities1 Merger is a vital part of any healthy economy and importantly, the primary way that companies are able to provide returns to owners and investors2 In fact, worldwide mergers have been growing in volume and value, hitting US$3.7 trillion in 2016 and third largest annual period for deal makings since recorded in 19803 The United States (hereinafter “the U.S”) dominated the top 100 deals, accounting for 54 in terms of target and 45 in terms of bidder4, proving itself to be the most sought after location for merger deals One significant culprit to explain why investors favor the U.S is its long-standing antitrust regime (started in the XIX-XX century) which is in an endeavour to support the flow of transactions, keeping the environment highly competitive

With regards to the U.S antitrust regime, the three main laws are the Sherman Act and the Clayton Act, which outlaw monopolies, and the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (hereinafter “HSR Act”) The HSR Act requires the parties to a proposed acquisition transaction to furnish certain information about themselves and the deal to the Antitrust Division of the Department of Justice

1 In a broad sense, mergers and acquisitions (or takeovers) are very similar corporate actions – they combine two initially separate firms into a single legal entity In a more specific sense, an acquisition is the generic term used for describe a transfer of ownership (the process by which the stock or asset of a corporation come to be owned

by a buyer) whereas a merger is a narrow, technical term for a particular legal procedure that may or may not follow an acquisition As distinct from a merger, an acquisition does not necessarily entail amalgamation or consolidation of the firms

In the U.S, mergers and acquisitions are regulated by both (i) federal statutory law and (ii) state statutory law According to such law, there is barely any different definition between “merger” and “acquisition” Therefore, in this thesis, the author will use the term “merger” in general for “mergers and acquisitions” For detail see Stanley

Foster Reed, Alexandra Reed Lajoux, H Peter Nesvold (2007), The Art of M&A A Merger/Acquisition/Buyout

Guide, 4th Edition, Mc-Graw-Hill, p 4 and Simon Robison Editor, 2012, The Mergers and Acquisitions Review,

6 th Edition, Law Business Research, p 702

Mergers regulated by Vietnam Competition law is otherwise under another definition as “economic concentration” see Section 1.1.2 below

2 Andrew J Sherman and Milledge A Hart, 2006, Mergers and Acquisitions from A to Z, 2th Edition, Amacom, p.1

3 Andrew Kelly, 2016, Mergers and Acquisition Review Full Year 2016, Financial Advisors, Thomson Reuters,

p.1

4 KPMG, 2017, 2017 M&A Predictor, KPMG International, p.4

(hereinafter “DOJ”) and to the Federal Trade Commission (hereinafter “FTC”)5 As recorded during its 100 years’ time of antitrust history, the U.S had undoubtedly experienced the toughest and most vigorous enforced antitrust law in the world, which has thrown new light on the worldwide competition regime and that of Vietnam is no exception

Since the Doi Moi reforms in 1986, Vietnam has achieved enormous growth in its pursue of the socialist-oriented market economy with in-depth global integration With the advantage of abundant and quality labor force with competitive costs; favorable geographic location in trade with the world; and the stable security and political situation, Vietnam has been attracting foreign investment since 2000, thus making it a dynamic environment for merger activities Moreover, the process of globalization in Vietnam started in 2007 with its participation in WTO, followed by a chain of 16 free trade agreements signed with countries6 has proven that Vietnam is opening up the door for global integration Therefore, Vietnam now faces a challenge

of building a strong legal framework to form and maintain a fair competition environment for all businesses, especially in the context when the Competition law has been enforced 12 years with many shortcomings to catch up with the current pace

Ever since the promulgation of the Vietnam Competition Law (hereinafter

“VCL”) in 2004 till the end of 2016, the Vietnam Competition Authority (hereinafter

“VCA”) had processed 32 economic concentration notification dossiers and consulted

50 cases of economic concentrations7 The current VCL has shown inevitable drawbacks with lack of updated regulations on practices in restraint of competition or the position and model of the competition agency, which lead to the ineffective and lengthy competition process In particular, the regulations on economic concentration control does not allow the VCA to exercise their authority towards the transaction by evaluating the potential competitive effects; besides, the current criteria for mandatory notifications thresholds and prohibition is out-of-date and needs further amendments with the modern economy

5 Alexandra Reed Lajoux, Charles M.Elso (2010), The Art of M&A Due Diligence Navigating Critical Steps and

Uncovering Crucial Data, 2nd Edition, Mc-Graw Hill, p 238

6 Tu Hoang, “Vietnam involved in 16 FTAs”, FTAs.html (last retrieved on 01/07/2017)

http://english.thesaigontimes.vn/51556/Vietnam-involved-in-16-7 Vietnam Competition Authority (2017), “Explanatory report on some amendments and supplements in the Draft Competition Law”, p 2 [TRANS: Cục Quản lý cạnh tranh, “Báo cáo giải trình thuyết minh v/v một số nội dung sửa đổi, bổ sung trong Dự thảo Luật Cạnh tranh (sửa đổi)”, tr.2]

In realization with the current situation, the Vietnamese government is drafting amendments to the VCL (hereinafter “Draft Law”) and is expecting to adopt it in May

20188 It is fundamental for the Vietnamese lawmakers to learn from the experiences of the U.S antitrust laws - world-leading competition regime – to create the most suitable competition law for the Vietnamese socio-economic situation Hence, a thorough analysis and synthesis of the U.S Antitrust law highlights in comparison with the current VCL shortcomings would give some hints to how the new VCL should be

adopted On the aforementioned base, the author chooses “Merger control in the U.S

and pointers for Vietnam” as a bachelor of law thesis

2 Literature review:

There are various books, researches and studies regarding mergers The HCMC University of Law’s library let alone has just over 20 materials about mergers, however, these materials mostly cover information concerning legal corridor or the economic perspective of mergers When it comes to mergers under the regime of competition law and, more specifically, the economic concentration regime under Vietnamese law, there have been a few studies, thesis and books on these matters Hereby are the most remarkable works:

 Phạm Trí Hùng (2012), “Khung pháp lý điều tiết sáp nhập, mua lại doanh nghiệp ở Việt Nam” (Legal framework governing M&A in Vietnam): this article covers general competition regulations including a limited reference to the U.S merger control regime

 Cao Thị Hoàng Oanh (2012), “Kiểm soát tập trung kinh tế theo pháp luật

cạnh tranh Việt Nam và Hoa Kỳ” (Economic concentration regime under Vietnam and

U.S law): this thesis is outstanding with Ms Oanh’s overall viewpoints on the difference between the U.S and Vietnam competition regime, however the thesis deemphasizes the competition effects analysis process which is a highlight in the U.S antitrust system

 Lê Hoàng Thanh Trường (2014), “Pháp luật cạnh tranh trong kiểm soát

mua lại và sát nhập (M&A) so sánh pháp luật Việt Nam và Hoa Kỳ” (Competition law

8 In the implementation of the National Assembly's Resolution No 22/2016 / QH14 of July 29 2016 on the new law drafting program, on 5 April 2017, the Ministry of Industry and Trade issued the second Draft Law on Competition For details see Baker Mckenzie, “Draft of New Competition Law in Vietnam”,

retrieved on 01/07/2017)

in controlling M&A – a comparative study between Vietnam and U.S law): this thesis demonstrates the general relation between mergers and acquisitions and competition regime with a focus on the U.S competition effects analysis process, thus suggesting remarks for Vietnam

However, researches and studies on U.S merger control in relation to Vietnam economic concentration regime are still rare up till this time Most works focus on the overall differences between two systems with a considerable constraint of mention of realistic, rational and applicable pointers for the new Vietnam competition law Therefore, the author, with reference to the available resources and the Draft Law, will give a comprehensive look at the current situation thus giving practical suggestions for the new Vietnam Competition law

3 Research objective:

This thesis proposes to study and analyze specifically certain statutory provisions that contribute to the success of the U.S Antitrust system, thus giving hindsight and detailed remarks in order to amend the current Vietnam competition regulations With the newly updated law, Vietnam is expected to bring a level playing field for businesses as well as facilitating economic development and effectively allocating social resources

4 Object and Scope of research

Firstly, with regards to the object of research, this thesis looks into two most outstanding different blocks between the U.S Antitrust law and VCL, namely: (i) types

of merger and (ii) the merger control mechanism The second chapter, in particular, will address two other sub-objects, which are: (iii) the statutory notification thresholds and (iv) criteria for prohibition

Secondly, concerning the scope of research, as limited by the time span and given the nature of the bachelor’s graduation thesis, this thesis mainly focuses on the types of merger and the merger control mechanism of the two legal systems as these are the most relevant and attention-needing matters relating to the current VCL Other sectors such as competition authority or the merger review process shall not be mentioned in this thesis The author wishes to come back one day to give a more detailed and comprehensive analysis on this subject

(iii) Theoretical method: the author will refer immensely to the current available material resources with special attention to some international experts’ works to produce the most objective and in-depth thesis

Each chapter shall have an overall similar structure with the idea flow goes as: (1) the U.S Antitrust regulations; (2) the VCL and shortcomings in the implementation

of law and (3) experience from the U.S and pointers for Vietnam

CHAPTER 1: TYPES OF MERGER UNDER U.S ANTITRUST LAW AND

POINTERS FOR VIETNAM 1.1 Types of merger under the regime antitrust law in the U.S and Vietnam

Under U.S Antitrust law, types of merger are quite different from that under Vietnamese laws The following study will analyzethe different approaches made by the two legal systems, thus allowing the author to suggest relevant comments for the forthcoming revised VCL

1.1.1 Types of merger under U.S Antitrust law

Irrespective of their many benefits, mergers attract the attention of competition law-makers since they normally have implications for the concentration of, and ability

to use, market power, which, in turn can pose harmful impact upon competition environment and the consumers9 The principal statute governing mergers and acquisitions in the U.S is Section 7 of the Clayton Act, which prohibits such

transactions “where in any line of commerce or in any activity affecting commerce in

any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly”10 According to the FTC, three basic kinds of mergers may have this effect are: horizontal mergers, vertical mergers, and potential competition mergers11 The aforementioned types of merger can be categorized into two sub-groups: horizontal mergers and non-horizontal mergers (vertical and potential mergers) based on its essence

1.1.1.1 Horizontal mergers

Horizontal mergers are mergers between firms that produce and sell the same products, for example, between competing firms Horizontal mergers, if significant in size, can reduce competition in a market and are often reviewed by competition authorities12 The U.S’s airline industry saw a merger between American Airlines and

9 NeerajTiwari, “Merger under the regime of Competition law: A comparative study of Indian legal framework with EC and UK”, http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1418&context=blr (last retrieved

on 08/06/2017)

10 Lee Van Voorhis, Vadim Brusser , “How Antitrust Agencies Analyze M&A”,

11 U.S Federal Trade Commission, Guide to Antitrust Laws, An FTC Guide to Mergers, Competitive Effects

12 R S Khemani and D M Shapiro (1993), “Glossary of Industrial Organization Economics and Competition Law”, http://www.oecd.org/regreform/sectors/2376087.pdf (last retrieved on 01/07/2017)

US Airways in 2013 which created the world’s largest carrier13 This is a typical example of a horizontal merger when two head-to-head competitors combined into one company

To provide the analytical framework for merger analysis, FTC and DOJ (here inafter “the Agencies”) jointly issued Horizontal Merger Guidelines (hereinafter the

“2010 Guidelines”)14.In general, the government’s investigation seeks to determine whether a proposed merger will result in a substantial lessening of competition in the markets where the merging firms compete According to the FTC, there are two types

of potential competitive effects: (i) by permitting the merged firm to raise prices profitably on its own (unilateral effect), or (ii) by creating or enhancing the ability of the remaining firms to act in a coordinated way on some competitive dimension (coordinated interaction)15

Unilateral effects

A merger can create this harm especially in the case of a merger to monopoly – when the merging firms are the only competitors in a market Normally, the result would serve as a raise in price or reduce output to harm the customers “But a merger may also allow a unilateral price increase in markets where the merging firms sell products that customers believe are particularly close substitutes After the merger, the merged firm may be able to raise prices profitably without losing many sales”16 This happens in post-merger stage when a majority of customers chooses to switch products between merging firms instead of switching to products of other competitors which, consequently, puts them under an unfavored situation Some common types of unilateral effects are: (i) pricing of differentiated products; (ii) bargaining and auctions;

13 Hugo Martin, “A key step in the merger between American Airlines and US Airways is scheduled for

Saturday”, http://www.latimes.com/business/la-fi-travel-briefcase-merger-20161001-snap-story.html (last

retrieved on 01/07/2017)

14 Horizontal Merger Guidelines was first introduced in 1992 by DOJ and FTC They revised the 1992 Guidelines slightly in 1997 and finallyin 2010 the Agencies introduced the 2010 Guidelines, which made substantial changes

to the 1992 Guidelines For details see U.S Department of Justice and Federal Trade Commission (2010),

Horizontal Merger Guideline

Besides, the Agencies also promulgated the “Commentary on the Horizontal Merger Guidelines (2006)” which is still effective till now For details see U.S Department of Justice & Federal Trade Commission, Commentary on the Horizontal Merger Guidelines (2006), https://www.ftc.gov/sites/default/files/attachments/merger-

review/commentaryonthehorizontalmergerguidelinesmarch2006.pdf (last retrieved on 01/07/2017)

15 U.S Federal Trade Commission, Ibid (11)

16 US Federal Trade Commission, Ibid (11)

(iii) capacity and output for homogeneous products; and (iv) innovation and product variety.17

Coordinated interaction

“A horizontal merger eliminates a competitor, and may change the competitive environment so that the remaining firms could or could more easily coordinate on price output, capacity, or other dimension of competition”18 Coordinated interaction is comprised of actions by a group of firms that are profitable for each of them only as a result of the accommodating reactions of the others “This behavior includes tacit or express collusion, and may or may not be lawful in and of itself”.19

It can be inferred that horizontal mergers have always been attracting more of the attention from the Agencies since the parties were initially rivals, therefore they are more capable of lessening the competition and creating monopoly for the newly merged firm20

1.1.1.2 Non-horizontal mergers

Non-horizontal merger was first introduced as part of “U.S Department of Justice Merger Guideline” in 1984 By definition, non-horizontal mergers involve firms that do not operate in the same market Although non-horizontal mergers are less likely than horizontal mergers to create competitive concerns, they are not invariably innocuous21 Generally, there are two types of non-horizontal mergers that can harm competition: (i) Mergers involving firms that operate at different levels of an industry (vertical mergers); or (ii) Mergers involving potential competitors (potential competition mergers).22

Vertical mergers

Vertical mergers combine firms at different levels of production or distribution, such as a manufacturer merging with a supplier of an input product, or a manufacturer

17 Lee Van Voorhis, Vadim Brusser (2010), Ibid (10)

18 US Federal Trade Commission, Ibid (11)

19 Alexandra Reed Lajoux, Charles M.Elso, Ibid (5), p.266

20 Robert J Carbaugh (2011), Contemporary Economics – An applications approach, 6th Edition, M.E Sharpe Inc, p 144

21 U.S Department of Justice, “Non-horizontal Merger Guidelines”, merger-guidelines (last retrieved on 01/07/2017)

https://www.justice.gov/atr/non-horizontal-22 Lee VanVoorhis, VadimBrusser, Ibid (10)

merging with a distributor of its finished products23 An example of this type is the proposed deal between AT&T and Time Warner, in which AT&T (the acquiring firm) provides wireless and broadband Internet service while Time Warner (the target firm) creates movies, TV shows and other content that AT&T and other distributors transmit

to consumers24 Advocates of abandoning the merger argued that this deal will limit consumer choice and lead to increased prices, including the President-elect Donald

Trump who pledged to block the merger because: “it’s too much concentration of

power will be put in the hands of too few.”25 Such mergers will be anticompetitive if the distributor (AT&T) gives special treatment to its newly acquired content provider (Time Warner), allowing free mobile video (zero-rated) for AT&T’s subscribers via its network This will surely put pressures on other competitors to pay AT&T (and other carriers) to also be zero-rated, lest they fall behind Time Warner in mobile popularity.26

Although vertical mergers are mostly perceived as raising fewer competitive concerns than horizontal ones, there is much less agreement about the analytical standards that should apply to the competitive analysis27 The Non-horizontal Guidelines listed some of the competitive problems, namely:

• Increased barriers to entry: a merger can elevate barriers to entry if, as a result of a merger, new entrants would have to enter the primary market and also the secondary market simultaneously to compete with the merged firm28;

• Facilitating collusion: a merger can make it difficult for competitors to gain access to an important component product/channel of distribution This happens

23 U.S Federal Trade Commission, Ibid (11)

24 Senator Orrin G Hatch, “A Dose Of Reality On The AT&T-Time Warner Merger”,

https://www.forbes.com/sites/realspin/2016/12/06/a-dose-of-reality-on-the-att-time-warner-merger/ (last retrieved

on 01/07/2017)

25 Brian Stelter, “Donald Trump rips into possible AT&T-Time Warner deal”,

26 Walt Mossberg, “Mossberg: Why the AT&T-Time Warner merger is dangerous”,

retrieved on 01/07/2017)

27 Leon B Greenfield & Jeffrey Ayer WilmerHale, “Vertical Mergers in the United States”,

http://www.wilmerhale.com/uploadedFiles/WilmerHale_Shared_Content/Files/PDFs/ICL%20Conference%20Pa per_2000.pdf (last retrieved on 01/07/2017)

28 This competitive problem could 7esult from either upstream or downstream integration, and could affect competition in either markets The term “primary market” refers to the market in which the competitive concerns are being considered, and the term “secondary market” refers to the adjacent market For details see U.S

Department of Justice, Ibid (20)

when the merged firm gains the ability and incentive to limit its rivals’ access to key inputs or outlets29;

• Avoidance of rate regulation: a price-regulated company’s acquisition of

an unregulated supplier could allow the regulated company to evade rate regulation by artificially inflating the cost of its internal transactions.30

Potential competition mergers

A merger of this type involves one competitor buying a company that is planning to enter its market to compete (or vice versa)31 If the merger effectively removes the acquiring firm from the edge of the market, it could either: (i) harm the

“perceived potential competition”: by preventing the actual increased competition that would result from the firm’s entry If the acquiring firm had unique advantages in entering the market, the firms in the market might be able to set a new and higher price after the threat of entry by the acquiring firm was eliminated by the merger32; or (ii) harm the “actual potential competition”: by eliminating the procompetitive effect that

an outside firm can have on a market simply by being recognized as a possible entrant33

In 2015, FTC challenged the proposed US$1.9 billion merger of Steris Corporation (“Steris”) and Synergy Health plc (“Synergy”) on the grounds that it would impair potential future competition between the merging parties34 At that time there were three primary methods of contract sterilization in the U.S, one of which is gamma radiation Synergy, besides providing the abovementioned methods, has been operating an x-ray sterilization facility outside the U.S – a method that could provide a competitive alternative to gamma radiation – and planned to bring it to the U.S in

201335 On that basis, FTC’s complaint alleged that Synergy abandoned its plans to bring x-ray sterilization to the U.S because of the proposed merger with Steris, and that Steris aimed to eliminate the competitive threat to its gamma sterilization services from

29 U.S Federal Trade Commission, Ibid (11)

30 Lee VanVoorhis, Vadim Brusser, Ibid (10)

31 U.S Federal Trade Commission, Ibid (11)

32 U.S Department of Justice, Ibid (21)

33 U.S Federal Trade Commission, Ibid (11)

34 Sidley, “Back From the Future: FTC Stumbles in Challenging Merger’s Effect on Future Competition”, https://www.sidley.com/en/insights/newsupdates/2015/09/back-from-the-future (last retrieved on 01/07/2017)

35 Bruce D Sokler, Farrah Short, “FTC Merger Challenge Based on Harm to Potential Competition Rejected by District Court”, http://www.natlawreview.com/article/ftc-merger-challenge-based-harm-to-potential-competition- rejected-district-court (last retrieved on 01/07/2017)

Synergy’s contemplated x-ray sterilization services36 The complaint, nonetheless, was denied by the district court for FTC’s failure to carry its fact-based burden37 In this case, the underlying theory of competitive harm that FTC applied was the actual potential competition theory that the market would be more competitive if it had not been for the merger

1.1.2 Types of economic concentration under Vietnam Competition Law

According to economics and legal science, economic concentration is analyzed

at different aspects There are three basic approaches that the VCL adopt to economic concentration, namely:

Firstly, as a process associated with the formation and change of the market

structure, economic concentration is defined as a process in which the number of independent competing enterprises is reduced by means of mergers (in broad sense) or

by internal growth on the basis of expanding the production capacity Secondly, as

regarded the behaviour of an enterprise, economic concentration is the increase in economic value by means of agglomeration between enterprises or by one enterprise attracting another This definition does not state specifically a type of economic concentration but rather demonstrating the nature and method of it.38 Thirdly, from a

legal perspective, VCL regulates behaviours regarded as economic concentration Accordingly, Article 3(3) states that economic concentration is considered a practice in restraint of competition Article 16, on the other hand, divides economic concentration into 05 categories: (i) mergers; (ii) consolidations; (iii) acquisitions; (iv) joint-venture; and (v) other forms

As stipulated under Article 1, Article 18 and Article 20 of VCL39, the VCL only regulate horizontal economic concentrations conducted within the geographic area of Vietnam since the criteria used for control of anticompetitive practice is combined market shares40 In other words, only cases in which the enterprise participating in the

36 Sidley, Ibid (34)

37 Bruce D Sokler, Farrah Short, Ibid (35)

38 Nguyen Ngoc Son, “Comments on the economic concentration regime in the Competition Draft Law – Second Draft”, p.2 [TRANS: T.S NguyễnNgọcSơn, “Góp ý đối với chế định tập trung kinh tế trong Dự thảo Luật Cạnh Tranh – Dự thảo 2”, tr.2]

39 Article 1 (Scope of governance), Article 18 (prohibited cases of economic concentration) and Article 20

(notification of economic concentration)

40 Article 3(6)VCL: “Combined market share means the total market share in the relevant market of the

enterprises participating in an agreement in restraint of competition or in an economic concentration”

economic concentration has the same level of business in the relevant market in Vietnam is within control of competition law.41

1.2 Shortcomings of Vietnam economic concentration regime

It can be deemed from Sector 1.1.2 that the current VCL do not regulate (i) horizontal economic concentration and (ii) economic concentrations conducted overseas that may have adverse competitive effects on the Vietnamese market

non-As regard to non-horizontal economic concentrations, they normally do not raise anticompetitive concerns and likely bring procompetitive effects to the market Vertical economic concentrations may increase the efficiency of the production process by improving communication and harmonizing the incentives of the merging firms42 while the other type can lead to cost savings derived from some forms of economy of scope (either on the production of the consumption side), or value enhancements resulting from better compatibility and quality assurance of complementary components43 Notwithstanding the benefits, these non-horizontal economic concentrations impose certain potential harms to the competition In 2015, Masan Group announced its acquisition of 52% stake in Vietnam French Cattle Feed JSC (Proconco) and 70% stake

in Argo Nutrition Company JSC (Anco), both of which are premium feed brands The acquisition would make the group the number one external pig feed market, and rank second in the overall animal feed market in Vietnam44 Masan Nutri-Science (MNS) –

a member of Masan Group – also acquired an additional 10.9% stake in the Vietnam Meat Industries Limited Company (Vissan), which reflects MNS’s strategic premium paid to partner with the leading meat consumer brand in the market “MNS’s aim is to deploy a unique business model, directly operating and integrating the entire animal protein value chain, spanning animal feed, farming, slaughter and producing branded

41 Nguyen Ngoc Son, Ibid (38)

42 Steven C.Salop, Daniel P.Culley (2014), “Potential Competitive Effects of Vertical Mergers: A How-To Guide for Practitioners”, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2404&context=facpub (last retrieved on 01/07/2017)

43 Miguel de la Mano, “Vertical and Conglomerate Effects”,

http://ec.europa.eu/dgs/competition/economist/delamano1.pdf (last retrieved on 01/07/2017)

44 Vietnam News, “Masan Group acquires Proconco and Anco”,

meat products.”45 This shall be a typical case of vertical economic concentration in Vietnam where an enterprise acquires others to complete its business chain

With regards to potential competition mergers, 2016 also witnessed an outstanding deal when Vietnam’s second largest mobile network operator MobiFone acquired 95% stake in Audio Visual Global JSC (AVG) – a player on the pay television market46 “By purchasing the subscription TV unit, in addition to deploying 4G data service, MobiFone said the efforts were aimed at increasing its valuation and making its upcoming Initial Public Offering more attractive.”47 TV services will be combined with telecommunication services using advanced technologies and customers will likely be exempted from some TV services charges as MobiFone has revenue from subscription.48 However, several months after the acquisition, the

government decided to scrutinise the deal as “MobiFone is one of Vietnam’s leading

mobile operators, and, more importantly, the first carrier to implement privatization Thus, any large investment by the firm needs a thorough look”, said Mai Tien Dung,

the head of the Government Office.49As stipulated by the DOJ: “Although

non-horizontal mergers are less likely than non-horizontal mergers to create competitive concerns, they are not invariably innocuous”50, it is essential for the VCL to have regulations towards non-horizontal economic concentrations to strengthen the authority’s control over the constantly changing environment

When it comes to the lack of governmental control over overseas transactions, this is a noticeable threat to Vietnamese economy as there is a great number of presence of multinational enterprises, some of which already hold a significant market share in the domestic market One typical case of this is the acquisition of Big C by Thailand’s Central Group Big C Vietnam is ranked second after the Co.opmart chain

in terms of store number, so the acquisition of Big C Vietnam will have a significant

45 Vietnam News, “Masan Nutri-Science owns ANCO, increases Vissan stake”,

https://www.dealstreetasia.com/stories/vietnam-mobifone-spent-400m-to-acquire-premium-tv-operator-avg-48 Nguyen Thi Bich Ngoc (2016), Ibid (47)

49 Nguyen Thi Bich Ngoc (2016), “Vietnam: MobiFone’s opaque AVG deal under review by government

agencies”, valuation-49707/ (last retrieved on 01/07/2017)

https://www.dealstreetasia.com/stories/vietnam-mobifones-acquisition-of-pay-tv-unit-heralds-opaque-50 U.S Department of Justice, Ibid (21)

effect on the domestic retail market51 Another example is the proposed economic concentration between international Prudential and AIA whose combined market share

in Vietnam is about 50% in life insurance market If the deal succeeded, the two firms combined would hold a significant market power thus being feasible to conduct anticompetitive effects to Vietnam’s market.52

1.3 Experiences from U.S Antitrust law and pointers for Vietnam

Regarding non-horizontal merger control, the U.S Antitrust law has clear guidelines of how mergers will likely be challenged by the Agencies, which is a contrasting picture regarding economic concentration regime in Vietnam that only uses

CMS as the criteria Mainly the question is whether the merger (i) is prohibited or (ii) needs to be informed to the authority In (i), the U.S Agencies will look into a set of

objective factors designed to identify cases in which harmful effects are plausible53 For instance, the factors that the Agencies will consider are: (1) market concentration using the Herfindahl-Hirschman Index (hereinafter “HHI”), calculated by summing the squares of the individual firms’ market shares (a case where a number higher than 1800 HHI of an overall concentration of the acquired firm’s market will likely trigger an investigation); (2) the acquiring firm’s entry advantage; (3) the market share of the acquired firm (a case where the acquired firm has a market share of 20% or more will likely trigger an investigation); (4) efficiencies; (5) structure and performance of primary market using HHI (for potential competition mergers);54 etc In (ii), the HSR

Act requires the parties to certain mergers must notify the enforcement Agencies of the contemplated transaction Generally the premerger notification is required if the merger meets the three tests: (a) the commerce test; (b) the size of transaction test; and (c) the size of person test55

According to the Draft law, one of the major changes to the type of economic concentration was Article 25, in which it said: “enterprises will be required to report to the National Competition Committee before conducting economic concentration if one

51 Quoc Hung, “Central Group wins bid for Big C Vietnam”, Group-wins-bid-for-Big-C-Vietnam.html (last retrieved on 11/06/2017)

http://english.thesaigontimes.vn/47135/Central-52 Vietnam Competition Authority (2012), Economic Concentration Report, Ministry of Industry and Trade, p.56

53 U.S Department of Justice, Ibid (14)

54 U.S Department of Justice, Ibid (14)

55 U.S Federal Trade Commission, “Steps for determining whether an HSR Filing is required”,

filing (last retrieved on 01/07/2017) Further analysis on this matter will be discussed in Section 2.1 below

https://www.ftc.gov/enforcement/premerger-notification-program/hsr-resources/steps-determining-whether-hsr-of them holds a market share https://www.ftc.gov/enforcement/premerger-notification-program/hsr-resources/steps-determining-whether-hsr-of at least 20%, or has its economic concentration transactions valued at VND 300 billion or more, or has the total turnover of at least VND 500 billion in the Vietnamese market in the fiscal year prior to the year of conducting economic concentration” It can be deemed from the Draft Law that the Vietnamese lawmakers made relatively similar approach to the control of economic concentration as that of the U.S one for merger control The author, to the extent of her knowledge, agrees with the Draft Law that different approach towards regulated types

of economic concentration will result in better authority of the VCA However, the suggested criteria also shows certain foreseeable shortcomings in their implementation, thus will be further discussed in Section 2.1 concerning the quatitive criteria

As regards the cross-border transactions, the U.S law does not provide for consideration of a merger’s competitive effects that do not affect U.S commerce Nonetheless, in a merger where the U.S parties with assets located abroad, relevant evidence located abroad, and/or parallel review in other jurisdictions, the U.S Agencies often work with their international counterparts – through formal and informal agreements - to investigate and remedy potentially anticompetitive mergers Under these formal agreements, as well as through informal cooperation under the auspices of the Organization for Economic Co-operation and Development (hereinafter “OECD”) Cooperation Recommendation56, the U.S Agencies may notify other nations of their enforcement actions that relate to other nations’ main interests, coordinate parallel investigations, or provide assistance This type of cooperation allows the Agencies to identify issues of common interest, share their competitive analyses, and seek to avoid inconsistent outcomes.57 For instance, in 2009, the FTC set conditions for the Panasonic Corporation (Panasonic)’s acquisition of Sanyo Electric Co., Ltd (Sanyo)58 Panasonic and Sanyo at that time were the world’s two largest manufacturers and sellers of the portable nickel metal hydride (NiMH) battery, whose merger would reduce competition in the worldwide market for portable NiMH batteries Therefore, the FTC consent order required the portable NiMH battery assets will be sold to FDK Corporation, a subsidiary of Fujitsu Ltd The sale of the assets would resolve

56 Recommendation of the Council concerning Co-operation between Member Countries on Anticompetitive Practices affecting International Trade, available at https://www.justice.gov/atr/1995-recommendation-council (last retrieved on 01/07/2017) The Recommendation was first adopted in 1967, and has been revised several times since

57 The OECD Global Forum on Competition, “Cross-Border Merger Control: Challenges for Developing and Emerging Economies”, http://www.oecd.org/competition/mergers/50114086.pdf , (last retrieved on 01/07/2017)

58 Both are Japanese firms

competitive concerns that were raised by the transaction During the investigation, FTC staffs communicated and cooperated with their enforcement counterparts in Canada, the European Commission (EC), and Japan that also reviewed this proposed transaction This cooperation was conducted pursuant to the respective bilateral cooperation agreements with these jurisdictions.59

In relation to the cross-border transactions under the Vietnamese competition

regime, Article 1 of the Draft Law suggested: “This Law regulates: 1 Acts in restraint

of competition (…) and economic concentration which are implemented in Vietnam or outside the territory of Vietnam but is likely to have an impact or potential impact to restrict the competitionof the Vietnamese market” This approach is in consistent with

the ongoing global merger control theory that had also been adopted by the U.S Antitrust system In particular, the new regulation allows the competition authority to scrutinize the transactions outside the territory of Vietnam that can pose harm to the Vietnamese market, which is crucial in the context where transactions reviewed by the VCA increasingly involve non-Vietnamese parties Moreover, the revised law also allows the competition authority to coordinate with other counterparts, including the sharing of information, permits more complete communication among the reviewing agencies, with the aim of improving the analysis and achieving consistent results, where appropriate60 The author, with reference to the recommendations of the OECD61, suggests that co-operation is more efficient (i) if the merging parties allow the authority to engage in effective communication early on in the review process by granting confidentiality waivers in appropriate cases, and (ii) if the timing of the different national merger reviews is aligned as much as possible Besides, the Vietnamese competition authority should put more emphasis on enhancing international cooperation with foreign competition authorities by means of contributing

to activities of the OECD and the International Competition Network (hereinafter

“ICN”)62, and developing bilateral cooperative relationship

59 U.S Federal Trade Commission, “FTC order sets conditions for Panasonic’s acquisition of Sanyo”,

https://www.ftc.gov/news-events/press-releases/2009/11/ftc-order-sets-conditions-panasonics-acquisition-sanyo , (last retrieved on 01/07/2017)

60 The OECD Global Forum on Competition, Ibid (57)

61 The OECD Competition Committee, “Remedies in cross-border merger case”,

62 The ICN is the only international body devoted exclusively to competition law enforcement and its member represent national and multinational competition authorities For details see

http://www.internationalcompetitionnetwork.org/ (last retrieved on 01/07/2017)

Conclusion

Despite its numerous benefits, non-horizontal economic concentrations are indeed latent with threats to the competition market It is fundamental for the VCL to have greater control over the types of economic concentration in order to promptly block the harmful transactions As regards the experience of the U.S Antitrust regime, Vietnam lawmakers can adopt some suitable tools and mechanism in reviewing the economic concentration This mechanism shall be discussed in Chapter 2

CHAPTER 2: MERGER CONTROL MECHANISM UNDER U.S ANTITRUST

LAW AND POINTERS FOR VIETNAM

In general, most mergers help make the economy more efficient Some mergers, however, may harm competition by creating or enhancing the merged firm’s ability or incentives to exercise market power – either unilaterally or through coordination with rivals – resulting in price increases above competitive levels for a significant period of time, reductions in quality or a slowing of innovation There are two main blocks in the U.S merger control mechanism, which are: (1) Pre-merger notification: prior to closing, any merger that meets the statutory reporting requirement must file a notification to the agencies (an HSR filing); and (2) Competitive effect analysis: After receipt of an HSR filing, either the Agencies assesses the transaction to determine whether it raises any substantial competition concerns This chapter will point out experiences that the U.S Antitrust system had with merger control regime, then allowing the author to suggest pointers for Vietnam regarding economic control regime

2.1 Statutory notification thresholds

“The modern consensus among economists and antitrust practitioners is that antitrust law should exist primarily to achieve allocative efficiency and to advance consumer welfare”63 To achieve these goals of antitrust law, the antitrust enforcement

adopted the economic method of “deterrence” and “ex ante control” - which is a

firm-specific control Instead of punishing firms that have entered into uncompetitive mergers or seeking to break them after the fact, the HSR requires firms that plan to merge to file a notification with the agencies, enabling the agencies to scrutinize the mergers before they occur64 The HSR Act sets out notification thresholds that certain mergers must submit a file to the agencies if they meet the requirements The HSR Act also regulates the merger review process, however, due to the insufficient information sources, it shall not be addressed in this thesis

63 Keith N Hylton (2010), Antitrust law and Economics Encyclopedia of law and economics, Edward Elgar

Publishing Inc, U.S., p.2

64 Keith N Hylton (2010), Ibid (63), p.3

2.1.1 Pre-merger notification thresholds under U.S Antitrust law

According to the HSR Act, unless an exemption applies, pre-merger notification

is compulsory if transaction meets three tests: (i) the commerce test; (ii) the size of transaction test; and (iii) the size of person test65

(i) The commerce test: if either party is engaged in commerce or in any activity affecting commerce, this test is met

(ii) The size of transaction test: if the transaction is valued at more than $200 million (as adjusted)66, and no exemption applies, and HSR filing must be made If the transaction is valued in excess of $50 million (as adjusted) but is $200 million (as adjusted) or less, only those transactions that meet the size of a person test require a filing.67 The test is met, as a result of the transaction, when the acquiring person holds

an aggregate amount of voting securities non-corporate interests and assets of the acquired person valued at more than $50 million (as adjusted)68

(iii) The size of person test: this test addresses the magnitude of the sales or total assets of the acquiring and acquired person and is carried out if the parties do not meet

up the (ii) requirements of transaction size The test is met if one party has sales or assets of at least $100 million (as adjusted) and the other party has sales or assets of at least $10 million (as adjusted)69

2.1.2 Shortcoming of Vietnam economic concentration regime regarding premerger notification thresholds

The VCL uses “combined market share” as the criteria for compulsory merger notification, in which an economic concentration that has a combined market share from 30% to 50% in the relevant market must notify the administrative body prior to their closing Reality shows that although the number of mergers is quite high

65 See Chapter 1, Section 1.3

66 The 2000 amendments to the Act require the Commission to revise certain thresholds annually based on the change in the level of Gross National Product A parenthetical “(as adjusted)” has been added where necessary throughout this thesis to indicate where such a change in statutory threshold value occurs For detail see FTC Premerger Notification Office, “To file or not to file when you must file a premerger notification report form”, https://www.ftc.gov/sites/default/files/attachments/premerger-introductory-guides/guide2.pdf (last retrieved on 01/07/2017)

67 FTC Premerger Notification Office, Ibid (66)

68 FTC Premerger Notification Office, Ibid (66), p.2

69 FTC Premerger Notification Office, Ibid (66), p.3

and is increasing recently, the number of transactions that were notified to VCA is quite low The reasons behind that should be as follows:

Firstly, the criteria of “combined market share” indirectly means that the VCL

only regulates horizontal mergers, which created a huge loophole allowing potential anticompetitive non-horizontal mergers to be conducted in the market70

Secondly, it is difficult for enterprises to determine their combined market share

in the relevant market The ICN suggests that market share-based is a subjective quantifiable criteria and thus should not be used for notification thresholds71 In many, perhaps most, transactions the merging parties are unable to readily determine their market shares in the various potentially affected markets, let alone knowing the revenue of other competitors in the market – which is the basis for determining market shares of participating parties The VCL requires a huge information-collecting obligation from the enterprises, thus putting high pressure on those wishing to conduct procedure on notification or consultation to VCA Moreover, if parties negligently do not conform to the notification duty, this could result in the severe monetary fine of 10% of the total turnover in the fiscal year preceding the year of economic concentration72 This would be true a dilemma for enterprises conducting economic concentrations in Vietnam

Thirdly, a fixed regulation of notification thresholds is not in conformity with

the rapid changing economy where each sector has a different market concentration For instance, in amarket where there are many competitors, an enterprise of 25% market share can still be regarded as holding market power if most of its rivals have about 1-2% market share Therefore, a fixed number of 30-50% combined market share is unable to cover all the possibilities of anticompetitive actions

2.1.3 Pointers for Vietnam

The Draft law showcases a complete change in approach towards pre-merger notification mechanism Specifically, Article 25(1) provides that the parties to a

70 See Chapter 1

71 International Competition Network, “Recommended Practices for Merger Notification and Review

Procedures”, http://www.internationalcompetitionnetwork.org/uploads/library/doc1108.pdf (last retrieved on 01/07/2017)

72 Article 27, Decree No 71/2014/ND-CP regulations of Law on Competition on imposition of penalties for violations against Law on Competition

proposed transaction must pre-notify the transaction in any of the following circumstances: (a) One of the parties to the transaction has a market share of 20% or more on the relevant market; (b) The transaction value of the economic concentration

is 300 billion VND or above; or (c) One of the parties to the transaction has revenue of

1000 billion VND or above in the fiscal year preceding the year of implementing the economic concentration

The only use of combined market share in the current VCL has been entirely omitted, however been added with two other criteria, which are the size of transaction and size of party A recent survey among the business community (500 enterprises) has shown a broad consensus of using new criteria, namely: total turnover of related businesses (403 votes, accounting for 73.4%) and value of transaction (136 votes, marking 24.8%)73 The author, nonetheless, wishes to make some comments on this regulation below

Firstly, instead of using “combined market share”, Article 25(1)(a) uses each

firm’s market share as the criteria The ICN Merger Recommended Practices notes that merger notification thresholds “should be clear and understandable”74 As clarity and simplicity should be crucial features of notification thresholds in order to permit parties

to determine whether a transaction is notifiable, it is not rational to require parties to estimate their own shares of affected market as they lack information required for doing so Besides, even in the context where competition agencies carry out the investigation, it would be a lengthy and promiscuous process when reviewing economic concentrations and determining the precise relevant market Therefore, it is difficult to set a common ground between merging parties and competition authority on the scope of relevant markets For these reasons, the author suggests not using the market share as an element in notification thresholds, instead, basing it on more objective criteria such as asset/turnover or size of transaction However, if the lawmakers insist on keeping this regulation, the threshold of 20% should be reconsidered since most enterprises in Vietnam are small and medium in size whereas the government encourages the formation of large corporations Moreover, this use

73 Nguyen Huu Huyen (2017), Types of economic concentrations and control object, Workshop for comments on

the economic concentration regime in the Competition Draft law (amended), p.5 [TRANS: Nguyễn Hữu Huyên

(2017), Các hình thức tập trung kinh tế cần kiểm soát và đối tượng kiểm soát, Hội thảo lấy ý kiến đóng góp đối

với quy định kiểm soát tập trung kinh tế trong Dự thảo Luật cạnh tranh (sửa đổi), tr.5]

74 International Competition Network, Ibid (71)

should require an overlap so that a market share held by only one party would be insufficient to trigger a filing

Secondly, the use of transaction’s size and total turnover in Article 25(1)(b) and

Article 25(1)(c) does not suggest much coherence to the Vietnamese market As recommended by the experts, requiring significant local activities by each of at least

two parties to the transaction “represents an appropriate local nexus screen since

likelihood of adverse effects from transactions in which only one party has a significant local presence is sufficiently remote that the burdens associated with notification are

Antitrust Law and International Law commented on the Draft Law that the proposed transaction’s size of 300 billion VND and party’s turnover of 1000 billion VND do not impose any meaningful local nexus connection to Vietnam76 In either case, it is difficult to determine the possible future impact of the overseas transactions to the domestic market Besides, the thresholds suggested are seemingly low for an international deal, which would create more cases of notification to the VCA, taking up more time and resources out of nothing

The author, hence, suggests that VCL base its notification thresholds on each of the parties having material turnovers or assets in Vietnam Where a party to a transaction has substantial operations in Vietnam, it would be more feasible to have

competitive effects on the Vietnamese economy Moreover, in consistent with the ICN

Merger Recommended Practices which states that “notification thresholds should be

confined to the relevant entities or businesses that will be combined in the proposed transaction”77, it is suggested that only assets being acquired in a transaction – rather than all activities of the seller’s corporate group – be considered within Vietnam’s revised notification thresholds.78

75 Comment 2 to International Competition Network, Ibid (71), I-C

76 The American Bar Association Sections of Antitrust Law and International Law, “Comments of the American Bar Association Sections of Antitrust law and International law on the Draft Competition law of the Socialist Republic of Vietnam”,

https://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_comments_salsil_vietnam_201705 24.authcheckdam.pdf (last retrieved on 01/07/2017)

77 Comment 3 to International Competition Network, Ibid (71), I-B

78 The American Bar Association Sections of Antitrust Law and International Law, Ibid (76), p.13

2.2 Criteria for prohibition

In a U.S’s merger review process, after receiving the HSR filing, the Agencies investigate to seek for evidences whether a proposed merger is potentially harmful for the market In the investigation, the Agencies follow the analysis set forth in the Merger Guidelines79 The relevant statutory provisions include Section 7 of the Clayton Act, 15 U.S.C § 18, Section 1 and 2 of the Sherman Act, 15 U.S.C §§ 1, 2, etc Particularly, the general principle to be used in determining the legality of mergers is under Section 7 of the Clayton Act to answer the question whether the effect of a

merger “maybe substantially to lessen competition, or tend to create a monopoly”

2.2.1 Competitive effects analysis under U.S Antitrust law

2.2.1.1 Horizontal mergers

The 2010 Guidelines describe how the antitrust agencies evaluate the likely competitive effects of mergers between existing and potential horizontal competitors The 2010 Guidelines suggest that the Agencies should focus on whether the proposed transaction will result in harm to competition, rather than being limited to a specific type of analysis80 Hence, the 2010 Guidelines follow a more integrated and less mechanistic approach than that of the 1992 ones Section 0.2 from the 1992 Guidelines described a step-by-step approach: (1) market definition and concentration; (2) competitive effects; (3) entry; (4) efficiencies; and (5) failing firm defense81 However,

it should be noted that merger analysis does not consist of uniform application of a single methodology Rather, the analytical framework set out by the Guidelines is intended to be an integrated framework designed to generate a confident conclusion about the likely net competitive effects of a merger, taking into account all parameters relevant to the particular merger82 With that said, the following content is the tools laid out in the 2010 Guidelines for horizontal merger analysis

Evidence of Adverse Competitive Effects The revised Guidelines emphasize

that merger analysis ultimately is about competitive effects The newly-added section 2

79 For horizontal mergers, the Agencies follow the 2010 Horizontal Merger Guidelines [For details see Ibid (14)] and for non-horizontal mergers, the Agencies follow the 1984 Non-horizontal Merger Guidelines [For details see

U.S Department of Justice (1984), 1984 Merger Guidelines, § 4]

80 Lee Van Voorhis, Vadim Brusser, Ibid (10)

81 Carl Shapiro, “The 2010 Horizontal Merger Guidelines: from hedgehog to fox in forty years”, Antitrust Law

Journal, Vol 77, p 707

82 Alden F Abbott (2005), “A brief overview of American Antitrust Law”,

https://www.law.ox.ac.uk/sites/files/oxlaw/cclp_l_01-05_1.pdf (last retrieved on 01/07/2017)