Arbitration in EU Commission Cleared Merger Transactions
11 Pages Posted: 20 Mar 2007
Date Written: November 2004
It has long been thought that, of all EU competition processes, merger regulation was immune from arbitration. This has changed dramatically over the last few years. Starting in 2000, the European Commission accepted, albeit reluctantly, to consider behavioural commitments made by merging entities. In the past, the Commission had considered that such commitments were not adequate to ensure competitive market structures. Compliance with structural remedies can be monitored fairly easily by the Commission. Structural commitments entail mostly divestments needed to maintain an acceptable level of competition. Behavioural commitments, however, require more extensive monitoring, since they concern the future behaviour of the merged entity. Monitoring these commitments is time consuming and the Merger Task Force (MTF) does not have the necessary resources to do so.
One of the solutions favoured by the MTF to monitor compliance with these new commitments, is to impose an arbitration agreement to the merged entity. The article examines the difficulties posed by the arbitration process in this context
Keywords: Arbitration, competition, merger
JEL Classification: K21
Suggested Citation: Suggested Citation