ICN Merger Workshop Tokyo 2018

　"Merger Review in the 2020s:
　Do Digitalization and Globalization Change the Analysis"
  7-8 November 2018 Tokyo, Japan

Opening Session

Speaker :

　Kazuyuki Sugimoto

　Chairman, Japan Fair Trade Commission

　Sadaaki Suwazono

　Deputy Secretary General for International Affairs,
   Japan Fair Trade Commission
   (On behalf of Mitsuhiro Miyakoshi, Minister of State for Special Missions)

　Christine Wilson

　Commissioner, US Federal Trade Commission

Plenary Session 1 : Merger Review in the Digital Economy

This Plenary session aims to provide an overview of the issues and the challenges related to review of mergers in the digital economy and how agencies respond to them: What are the characteristics of mergers in the digital economy? How is merger review in the digital economy different? What has been the experience of competition agencies?

Moderator :

　John Pecman

　Senior Business Advisor, Fasken

Speakers :

　Executive Director, Markets and Mergers, UK Competition and Markets Authority

　Director, Business and Economics, Competition and Consumer Commission of Singapore

　Member of the Board, Portuguese Competition Authority (AdC)

Simultaneous Break Out Session 1

BOS 1：Notification and Review

The effectiveness of purely turnover-based notification thresholds recently has been called into question with regard to certain sectors, e.g., digital services and pharmaceuticals, for failing to capture certain transactions involving targets with limited actual turnover that may raise competition concerns. This concern arises primarily when an agency' s authority to review and challenge proposed transactions is limited to those transactions subject to mandatory notification requirements, i.e., the agency is deprived of jurisdiction for transactions that do not meet the jurisdiction' s notification requirements. This session will explore different ways of addressing these challenges, including appropriate alternative criteria for notification and residual jurisdiction.

Moderator :

　Dave Anderson

　Partner, Bryan Cave Leighton Paisner

Panelists :

　Vice President, Hungarian Competition Authority (GVH)

　Head of Unit (German & European Merger Control), Bundeskartellamt

　Chief Case Handler, Spanish Competition Authority (CNMC)

  International Counsel, US Federal Trade Commission

BOS 2：Analytical Framework for Digital Mergers

Are standard approaches sufficient to capture non-price effects (e.g., effects on quality (including innovation), interoperability), which can arise in technology mergers? Does current market share become less important in rapidly changing markets? How should one account for network effects in the analysis? This session will use case examples to explore these topics.

Moderators :

　Billy Vigdor

　Partner, Vinson & Elkins

Panelists :

　Director, Tokyo, AlixPartners

　Case handler, Unit C5,
   Competition Directorate-General of the European Commission

　Assistant Director, Digital Platforms Inquiry,
   Australian Competition & Consumer Commission

BOS 3：Issues in Big Tech Mergers(PDF :28KB)

Should we be concerned about tech giants acquiring startups active in adjacent markets, or could these acquisitions also have beneficial effects? Are our tools equipped to address potential concerns? Reviewing our experience to date, how have prior acquisitions affected these markets? What is the role of data in reviewing tech transactions? If a tech firm obtains data from a consumer experience, is that the equivalent of a transaction , such that changes to the way a consumer’s data is gathered or used could be analogized to a price increase or quality decrease? This session will rely on case examples.

Moderators :

　Special Adviser, Slaughter and May

Panelists :

　Member of Commission,
   Competition and Consumer Protection Commission of Ireland

BOS 4：Technology and Data Review(PDF :836KB)

Merger review increasingly relies on large document and data submissions, and the technology available to gather, prepare, and review those submissions is evolving rapidly. What should agencies think about with respect to how merging parties are responding to document and data requests? What resources are agencies using for technology-assisted review? What are the benefits and challenges of outsourcing? This session will also explore recent technological innovations such as predictive coding.

Moderators :

　International Counsel, US Department of Justice

Panelists :

Plenary Session 2：Vertical Merger

This Plenary session highlights the Merger Working Group’s Project on vertical mergers, which covers theories of harm, evidence, economic analysis, assessment of efficiencies, and remedies. This session may also address aspects of the digital economy such as platform mergers.

Moderators :

　Joel Bamford

　Senior Director of Mergers, UK Competition and Markets Authority

Panelists :

  Associate Deputy Commissioner of Mergers, Competition Bureau Canada

Simultaneous Break Out Session 2

BOS 5：Nuts and Bolts of Vertical Merger Review(PDF :649KB)

Focusing on a straightforward vertical case, this session will walk through the key steps in investigating a vertical merger, considering the ability, incentive and effect of the merger. The session will also briefly discuss ‘safe harbours’ and type of evidence used in the assessment of vertical mergers compared with horizontal mergers. Question whether the approach to the assessment of vertical merger varies between jurisdictions. This interactive group session is designed for participants with less experience in this area or those wishing to consolidate their knowledge.

Moderators :

　Maria Duarte

　Assistant Director, Mergers, UK Competition and Markets Authority

Panelists :

BOS 6：Economic Theory and Evidence in Analysis of Vertical Mergers(PDF :823KB)

This breakout session is an opportunity to consider in more depth the economic theory and analytical techniques for vertical mergers. The session will look at the key theories of harm and possible techniques for assessing the available evidence, including quantitative methods e.g. vGUPPI.

Moderator :

　Alexander Baker

　Director, Fingleton Associates

Panelists :

BOS 7：Remedies in Vertical Mergers

This session will consider the use of behavioural remedies in vertical cases. We will explore the difficulties in designing, implementing and evaluating behavioural remedies and whether these can ever be overcome such that a behavioural remedy is really the right outcome where a vertical concern is identified. We will look to draw on the collective experience of the participants in this area to compare and contrast across jurisdictions.

Moderator :

　John Kwoka

　Professor of Economics, Northeastern University

Panelists :

　Senior Associate, Nagashima Ohno & Tsunematsu

BOS 8：Conglomerate Mergers(PDF :257KB)

Conglomerate mergers involve the combination of firms which sell products to the same customers. This session will present a case study to cover common theories of harm such as tying, bundling, and mixed bundling, and highlight important factors in analyzing conglomerate transactions, such as discussions on market power and foreclosure requirements, the role of scale economies, and the necessary types of evidence and evidentiary standards.

Moderators :

　Ulla Schwager

　Case handler, Unit A2, Competition Directorate-General of the European Commission

Panelists :

Plenary Session 3：Challenges of Globalization for Merger Review(PDF :1,762KB) Youtube

This Plenary session aims to highlight the challenges of globalization for the merger review, addressing both procedural and analytical aspects of these challenges. For example, does globalization influence geographic market definition and competition analysis? How can international cooperation help agencies to address multijurisdictional merger review? How should agencies and parties deal with coordination of extraterritorial remedies?

Moderators :

 　Kei Amemiya

 　Partner, Morrison & Foerster / Ito & Mitomi

Panelists :

Plenary Session 4：Innovation and Non-Price Effects in Merger Review

Competition is normally based not only on price, but also on quality, investment in new products or processes, research and design, and various other competitive tools. This panel will explore how agencies consider non-price effects and innovation in particular, including the appropriate role of quantifying competition in quality dimensions and how agencies can consider the effects of mergers on incentives to invest in new products and processes within traditional analytical frameworks.

Moderators :

　Reiko Aoki

　Commissioner, Japan Fair Trade Commission

Panelists :

MWG Work Products Presentation(PDF :2,986KB) Youtube

Speakers：

Simultaneous Break Out Session 3

BOS 9：Geographic Market Definition

The development of globalization, trade liberalization, and digitalization poses the challenges of defining the geographic scope of a market in merger review. What situations lend themselves more readily to geographic markets broader than national borders? How do we address situations where the overall impact of a transaction may be concerning, but its effect in any one national market insignificant? How do we engage with customers and competitors in other jurisdictions, particularly where there are language barriers? How does evidence or analytical tools change with globalization and digitalization?

Moderators :

　Huy Do

　Partner, Fasken

Panelists :

  Director, M＆A Division, Korea Fair Trade Commission

 

BOS 10：Framework for Merger Review Cooperation

With the globalization of business activities, multijurisdictional merger notification is increasing and enforcement cooperation becomes even more important. What kind of framework for cooperation, both bilateral/multilateral and regional/global, is available for ICN member agencies and how do these tools support cooperation? What kind of cooperation activities are included? What practical challenges do agencies face in trying to cooperate? Are there particular mechanisms to facilitate cooperation for less well resourced or younger agencies? The BOS also aims to gather MWG members' inputs on how to promote the ICN Framework for Merger Review Cooperation established in 2012 and any improvements/upgrades helpful for the use of the Framework.

Moderator :

　Yudi Hidayat

　Commissioner, Commission for the Supervision of Business Competition of Indonesia (KPPU)

Speakers :

BOS 11：Information Exchange

Information exchange is one of the important aspects of enforcement cooperation. In what circumstances should agencies consider exchanging agency non-public information with their counterparts? When and how should this occur? When do agencies benefit from the exchange of business confidential information? What are the potential challenges or liabilities associated with the exchange of any non-public information? What kind of information is typically exchanged in different stages of merger review? The BOS also discusses the practical tools for enforcement cooperation that the MWG will explore as this year' s project.

Moderator :

　Partner, Nagashima Ohno & Tsunematsu

Panelists :

BOS 12：Extraterritorial Remedies

In designing remedies to address the potential competitive harm of a merger in the domestic market, competition authorities may sometimes need to consider the scope of remedies beyond their own territory. This can raise controversial issues. What is the appropriate geographic scope of remedies? When do extraterritorial remedies generate conflicts among different competition law and policy objectives of relevant jurisdictions and how can agencies and practitioners solve them? What are the practical challenges in effectively enforcing remedies beyond a national territory?

Moderator :

　International Counsel, US Federal Trade Commission

Panelists :

Simultaneous Break Out Session 4

BOS 13：Innovation Assessment

This breakout session will rely on recent cases to examine the evidentiary challenges associated with analyzing innovation concerns such as potential competition, pipeline products, and innovation markets.

Moderators :

　Giorgio Motta

　Partner, Skadden Arps

Panelists :

BOS 14：Non-price Effects in Retail and Healthcare Mergers

In some mergers, the rivalry between merging parties focuses on one or more of quality, range and service instead of on price, meaning that the assessment of the merger effects will need to focus on these non-price factors. This session will introduce case studies from the retail and healthcare sectors where non-price effects have been dominant. The session will explore why non-price effects were important in these cases and how the analysis was undertaken.

Moderators :

　Maxwell Harris

　Economic Adviser, UK Competition and Markets Authority

Panelists：

BOS 15：Practical Challenges When Considering Non-price Effects in Merger Reviews

This will be an introductory session to carrying out a merger review where non-price effects are important. The session will be run through the use of case studies, with participants being given practical exercises to explore the challenges of non-price analysis.

Moderators :

　Richard Davidson

　Mergers Manager, New Zealand Commerce Commission

Panelists：

BOS 16：Should Privacy Be a Non-price Merger Effect?

How are agencies addressing the pressure on merger enforcement to absorb public policy objectives such as privacy? When or how should privacy be considered as a non-price element of merger review? How can concerns about privacy be remedied? This session will discuss these questions and examine cases where privacy was a consideration (Microsoft/LinkedIn, Google/DoubleClick, and others).

Moderators :

　Partner, DORDA Rechtsanwaelte

Panelists：

Closing Session

Speakers：

　Joel Bamford

　Senior Director of Mergers, UK Competition and Markets Authority

　Takashi Yamamoto

　Commissioner, Japan Fair Trade Commission