Campbell, Neil; Halladay, Casey; Wakil, Omar --- "A Transatlantic Assessment of the Evolving Use of Behavioural Merger Remedies" [2006] ELECD 522; in Marsden, Philip (ed), "Handbook of Research in Trans-Atlantic Antitrust" (Edward Elgar Publishing, 2006)

Book Title: Handbook of Research in Trans-Atlantic Antitrust

Editor(s): Marsden, Philip

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845421816

Section: Chapter 5

Section Title: A Transatlantic Assessment of the Evolving Use of Behavioural Merger Remedies

Author(s): Campbell, Neil; Halladay, Casey; Wakil, Omar

Number of pages: 45

Extract:

5 A transatlantic assessment of the evolving
use of behavioural merger remedies
Neil Campbell, Casey Halladay and Omar
Wakil*


Introduction
Competition law enforcement authorities have a well-known predisposi-
tion for `structural' rather than `behavioural' remedies to resolve concerns
in merger transactions.1 This is evident from the published guidelines of the
US Federal Trade Commission (the FTC),2 the US Department of Justice
(the DOJ) and the European Commission (the Commission),3 as well as in
public statements by senior officials in Canada's Competition Bureau (the
Bureau)4 and its recent draft information bulletin on the subject.5
Despite being the typical remedy in non-merger cases, behavioural
merger remedies are often dismissed in merger cases as complicated,
difficult to implement and in need of ongoing monitoring. The US
Supreme Court commented nearly half a century ago that divestiture is the
preferred remedy for anticompetitive mergers as it is `simple, relatively easy
to administer, and sure', while behavioural remedies can be `cumbersome
and time-consuming'.6 More recently, an International Competition
Network report observed:

Behavioural remedies cover a wide range of potential applications but require a
substantial amount of monitoring and enforcement. Moreover [. . .] behav-
ioural remedies have significant disadvantages in terms of cost, effectiveness and
risk of market distortion.7

We believe that the criticisms of behavioural remedies in merger cases are
overstated. While monitoring and enforceability issues require careful
attention, they are increasingly manageable through private contracts,
arbitration mechanisms and other techniques that may be combined with
...