FAS PRESENTED MODEL RECOMMENDATIONS ON THE APPLICATION OF CONFIDENTIALITY WAIVER MECHANISM (WAIVER)

The presentation of the document by the Deputy Head of FAS Russia Andrey Tsyganov took place during the closing ceremony of the VII BRICS Conference on Competition.

The Speaker noted that globalization leads to an increase in the number of transnational transactions, and the close cooperation of competition authorities of the BRICS member countries makes it possible to optimize the procedures for reviewing global transactions at the national level.

One of the practical results of the large-scale work of the competition authorities of the BRICS countries was the adoption of the Model Recommendations on application of the confidentiality waiver mechanism (waiver) in reviewing transactions of economic concentration of the BRICS member states.

In recent years, the BRICS competition authorities have achieved significant success in considering large global transactions of economic concentration. Among them are mergers of agro-industrial giants Bayer/Monsanto, IFF/DuPont, deals of manufacturers of locomotives and wagons Siemens/Alstom and Alstom/Bombardier, mergers in the pharmaceutical sector Glaxo Smith Klein/Pfizer, Takeda/Shire, in the industrial sector Metso/Outotec, Aon/Willis Tower merger in the sector of banking and brokerage services.

International cooperation in the consideration of global transactions of economic concentration is inextricably linked with the exchange of information, including confidential. In order to thoroughly analyze and assess the possible consequences of global transactions for national markets, the agencies systematically inform each other about transactions that may potentially be of interest to other BRICS jurisdictions.

During the 6th BRICS Competition Conference in September 2019, FAS Russia proposed to develop Model Recommendations on application of wavers in approving global transactions of economic concentration in the BRICS countries.

In the case when the transaction is being considered by antimonopoly authorities in two or more jurisdictions, the parties may voluntarily waive the confidentiality regime. The exchange of information will allow competition authorities to make uniform and non-contradictory decisions in the interests of their states.

The procedure for obtaining a waver can be initiated both by the antimonopoly authority that received the request for approval of the transaction, and by the parties to the transaction.

Model recommendations are voluntary and are a guide and tool for competition advocacy.

For reference:

The model recommendations will be posted on the websites of the antimonopoly authorities of the BRICS countries and on the website of the International Center for Competition Law and Policy of the BRICS.

Link to Model Recommendations on the Application of the Confidentiality Waiver Mechanism (waver) in reviewing Transactions of Economic Concentration of BRICS member states on the FAS Russia website: https://fas.gov.ru/documents/687997