Gun-Jumping through Pre-Closing Information Exchanges in M&A Transactions and Alternative Safeguard Mechanisms

Abstract

M&As, as critical and complex corporate transactions, require relatively lengthy negotiation and/or due diligence processes in order to enable the parties to accurately appraise the financial advantages that might be achieved through the concentration as well as its potential drawbacks. While these evaluation processes are crucial for the parties in terms of their business strategies, they can also raise serious competition law concerns under some circumstances.

To provide a better understanding of these concerns, this article will first focus on the concept of gun-jumping, including its definition and its types (i.e., procedural and substantive). Subsequently, we will examine gun-jumping rules (with a particular focus on gun-jumping through information exchange) in a number of different jurisdictions — specifically, the US, the EU and Turkey — together with an assessment of several groundbreaking cases in those jurisdictions.

Keywords: gun-jumping, suspension requirement, merger control, M&A, pre-closing, information exchange

JEL Classification: K21, L40