Sunday, January 4, 2009

Antitrust Legislation and Policy in a Global Economic Crisis—A Canadian Perspective

Posted by D. Daniel Sokol

George Addy
, Anita Banicevic, & Mark Katz (all of Davis Ward Phillips & Vineberg) provide their thoughts on Antitrust Legislation and Policy in a Global Economic Crisis—A Canadian Perspective.

ABSTRACT: As the global economic crisis continues, governments and private parties worldwide have undertaken a number of measures to safeguard the stability of their ailing economies. For example, governments in the United States, Europe, and to a lesser degree, Canada, have delivered significant infusions of capital and facilitated major mergers in the financial sector (e.g., Wells Fargo/Wachovia, Bank of America/Merrill Lynch, JP Morgan/Bear Stearns) in a bid to help financial institutions withstand the crisis. In addition to such unilateral measures, given the increasing interdependence and integration of global financial markets and institutions, governments are considering the need for drastic restructuring of multilateral institutions and trading instruments.

When contemplating the implications of a global economic crisis, one is bound to ask what, if any, is the appropriate role of antitrust legislation and policy and what impact there will be on future antitrust enforcement. On the one hand, it could be argued that antitrust policy should be shunted aside—at least in the context of merger review—and not be allowed to prevent restructurings that are necessary for economic stability even though they may also allow the merging parties to acquire market power. Time is of the essence in responding to the financial crisis and timeliness of decision making has been a serious challenge for competition agencies in the past. On the other hand, it is possible to contemplate an even greater role for antitrust enforcement, particularly in areas such as cartels and abuse of dominance. Furthermore, given the global scope of the contemplated restructurings, it is quite plausible that the enforcement posture of one jurisdiction could lead to pressure to adopt the same stance in other jurisdictions, putting a severe strain on recent inter-agency cooperation.

To date, the approach of antitrust agencies has been anything but uniform. In Canada, the Competition Bureau has been silent on its views of the role of antitrust law and policy in the current crisis.

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