How will the forthcoming revision of Japan’s Merger Guidelines affect the review of M&A transactions in highly concentrated markets?

The proposed revisions more clearly recognize the possibility of taking into account procompetitive effects relating to security and stability of supply, investment, innovation, and environmental performance. They also indicate that merger review may take account not only of current market conditions, but also of future market developments, including market contraction and changes in import competition. In addition, the revised Guidelines expressly state that the competitive effects of a transaction should be assessed by comparing the competitive conditions that would likely prevail with the merger against those that would likely prevail without the merger.

These changes may create greater scope, depending on the facts of the case, to consider clearance of transactions that might previously have been expected to face significant scrutiny because of high market shares or a reduction in the number of market participants.

This does not, however, mean that M&A in highly concentrated markets will simply become easier to clear. It will become increasingly important to establish, based on appropriate facts and evidence, how market conditions are likely to evolve and what competitive effects the transaction itself is expected to generate. In highly concentrated markets in particular, economic analysis can play an important role in assessing future competitive conditions and transaction effects that may not be captured adequately by market shares or HHI alone.

The seminar will first review the principal elements of the proposed revisions and their practical implications. It will then consider the types of transactions in which clearance prospects may be affected by factors such as market contraction, preservation of supply capacity, major investment requirements, decarbonization, and R&D and innovation.

The seminar will also draw on selected merger cases from Europe and the United States involving efficiencies, investment, and innovation. Against this background, we will discuss, from a practical perspective, the types of evidence that may be required in post-revision merger review in Japan, and how internal documents, business plans, data, and economic analysis may be used in developing a persuasive clearance strategy.

The seminar is intended to provide companies considering M&A transactions, as well as their legal and other advisers, with practical perspectives on how the revised Merger Guidelines may affect merger strategy and review in highly concentrated markets.

Program:

1.  Key elements of the revised Merger Guidelines and their practical implications
2. Types of M&A transactions in highly concentrated markets where clearance prospects may expand
3. Lessons from overseas merger cases on review and evidentiary strategy
4. The role of economic analysis in merger clearance strategy
5. Practical implications for companies in Japan

Intended audience: Lawyers and in-house legal counsel of corporations.
Please note that applications may be declined if you are deemed ineligible, a peer or competitor, or if your affiliation cannot be verified based on the information provided.

Participation: Free of charge.

How to register: Please register via the online application form. We will send details on participation and access by email prior to the event.

Please note this event will be in Japanese only.