Antitrust-approval Risks: Issues And Pitfalls In International M&A Agreements

Obtaining antitrust approvals is a key part of the overall transaction process for many M&A transactions. Currently, there are over 100 national and regional antitrust regimes, with new regimes being introduced and existing regimes extended on a regular basis.

Recognizing the growing complexity of the antitrust approval process, merging parties and their counsel increasingly seek to identify required filings and potential substantive antitrust risks early, enabling them to build the results into the transaction timetable.

Requirements to make antitrust filings and obtain antitrust approvals must also be appropriately documented in the Purchase Agreement. However, antitrust-related provisions involve traps for both M&A and antitrust lawyers insofar as merger review regimes differ in ways that can have significant implications on the wording of related provisions. The provisions that bear on antitrust approvals may also interact in unexpected ways.