International Merger Conflicts Between the U.S. and the EU and Their Implications on Development of Merger Controls of the Korean Antitrust Law a Comparative Study of the U.S. and EU Competition Laws with the Focus on the Ciba-Geigy/Sandoz, Boeing/McDonnell Douglas, and GE/Honeywell Cases

The U.S. and EU merger control regimes are two sets of merger systems that have the greatest impact on global economy and on the growth of merger rules for developing countries. Despite some similarities, there are profound and fundamental differences between the U.S. and EU antitrust authorities—the Ciba-Geigy/Sandoz, Boeing/McDonnell Douglas and GE/Honeywell proposed mergers - triggered a vigorous debate between the U.S. and EU antitrust officials over merger policy. These merger conflicts between the U.S. and the EU provide developing countries with an excellent opportunity to study fundamental differences in transatlantic merger rules and to learn what specific parts are keen issues to which developing countries should pay attention The Korean government enacted its first earnest antitrust statute, the Monopoly Regulation and Fair Trade Act on December 23, 1980. Although Korea has more than twenty years of antitrust history, its antitrust policy and jurisprudence is underdeveloped and has a number outstanding areas that need to be advanced in order to arrive at the level of a mature merger control system such as those found in the U.S. and EU. This dissertation provides a detailed and systematic analysis of the differences between U.S. and EU merger controls with a focus on three international merger conflicts. This dissertation discusses U.S. and EU merger control laws and examines transatlantic differences existing in the area of antitrust goals, or presumptions, and substantive merger rules. Addressing presumptions of antitrust law, this dissertation argues that unlike U.S. antitrust policy, which protects competition rather than competitors, EU antitrust policy protects competitors rather than competition. Concerning the definition of relevant markets, this dissertation argues that although U.S. and EU approaches have become more similar; differences remain and raise the possibility of future U.S. and EU agency disagreements over market definition. Concerning the assessment of anticompetitive effects, this dissertation suggests that the different test used by U.S. and EU authorities leads to different outcomes in certain cases because their respective merger analyses are structured around a different focus. This dissertation also concludes that unlike the U.S. approach, the EU has accepted the failing company defense only in exceptional cases and does not share the view that efficiencies are necessarily advantageous to consumers. Based on these discussions, this dissertation introduces Korean antitrust law and suggests how Korea should develop its merger law in specific areas of merger analysis to refine its analytical tools and to adopt a system that better fits Korea. This dissertation, thus, recommends unto which merger system Korean antitrust law should conform on specific issues - either to the U.S. model or the EU model