New Merger Review Process in Brazil

Since 1994, when the current Brazilian antitrust law (Law no. 8,884/1994) was enacted, the merger review process has been subject to criticism, mainly focused on the post-closing emphasis of the review process. According to the 1994 law, any transaction that meets one of the legal criteria¹ must be submitted for review by the antitrust authorities.² Such notification must be made within 15 business days from the execution of the first binding transaction document. Thus, the parties can execute the transaction agreements and implement all provisions set forth (i.e., close the transaction) without waiting for the antitrust clearance.

The absence of conditions precedent and a waiting period—common in a pre-closing regime—have restricted the effectiveness of CADE's decisions, since the authority has refrained from taking severe decisions (e.g., disapproval and/or divestiture) years after the completion of a merger between competitors. Thus, the purpose of the authority