Susan M. Hutton and Michael Kilby
New Merger Review Process
On September 18, 2009, following a consultation and comment period, the Competition Bureau issued its final Merger Review Process Guidelines, which explain the Bureau's approach to administering Canada's new, two-stage merger review process. The publication of the final Guidelines sheds important light on the Bureau's approach to the new process - especially given the lack of meaningful debate within the Canadian competition bar or Parliament as to the desirability or scope of the changes, prior to them becoming law in March, 2009, as part of an omnibus budget stimulus package rushed through Parliament in response to the economic crisis.
In summary, the new Canadian merger review process mimics that in the U.S., with an initial thirty-day waiting period, which can be extended for another thirty days after the merging parties comply with a "supplementary information request," or SIR, if one is issued during the initial waiting period. Anyone familiar with U.S. merger review will, of course, also be aware of the complaints regarding the enormous time and expense of complying with such "second requests" - and the questions regarding the efficiency of what some see as disproportional document production requirements.
While the Bureau was quick to deny that it would mimic the U.S. approach in terms of either the scope of documentary production, or the number of such requests that are issued, the Guidelines - and recent experience1 - indicate that many features of U.S. procedure and practice have been adopted - creating a more burdensome process for merging parties in complex cases than they were used to under the old regime.2
Continue Reading...
