International Merger Enforcement Cooperation and younger/newer agencies ICN Annual Conference, MWG BOS 5, April 29, 2015 Hiromitsu Miyakawa, Jones Day

Concerns of Private Parties  Timing  Amount of information  Confidentiality  Predictability and Transparency  Consistency 2

3  Filing obligation  Scope and amount of information required for filings and reviews still vary across jurisdictions  Appreciable competitive effect in relevant jurisdictions  Timing issues  Acceptance of filing  Extension of review period without specific and substantive competition concerns  Stop the clock by issuing RFI Practical Issues

4  Substantive analysis  Safe harbors, used of HHI and market share information  Relevant factors to be considered  Treatment and protection of confidential information  Structure and implementation of remedies  Publication of judgment and reasoning

5 JFTC’s Cooperation: Examples  Zimmer/Biomet –JFTC/US FTC/ European Commission  Thermo Fisher/Life Technologies –JFTC/US FTC/European Commission  ASML/Cymer –JFTC/US DOJ/KFTC and other agencies  WDI/Viviti, STI/Samsung –JFTC/US FTC/European Commission/KFTC  Panasonic/Sanyo –JFTC/US FTC/European Commission

6 Agencies Cooperation: When it works  International transaction filed in multiple jurisdictions  Homogeneous products  Basically same market players (competitors and customers)  Securing confidentiality of business secret and other sensitive information  Ensure appropriate and proportionate remedies  Referring to analysis of larger, more experienced agencies  Parties’ willingness to provide waivers

7 Agencies Cooperation: When it does not work  Diverse effects on local market  Competitive situation and market conditions  Not fully converged merger regimes  Mandatory/voluntary, pre-closing/post-closing, etc.  Relationship among agencies  Agreements, memorandum, informal communication  Unilateral flow of information from experienced agencies to younger/newer agencies?  Parties’ filing strategies  Timing of filings and merger reviews  Refusal to provide waivers

8 Challenges: Private Sector Perspective  Timing alignment  Efficiencies in investigation leading to early clearance  Communication between agencies and parties as to expected timelines  Cooperation should not delay merger reviews  Amount of information  Further convergence of filing forms, necessary information, etc.  Confidentiality  Establish clear and standardized rule on protection of confidential information

9  Private parties’ initiative  Request for cooperation among relevant agencies  Selection of information to be shared among agencies  Transparency  Notification/disclosure of effect and result of cooperation  Remedies  Ensure non-conflicting remedies  Remedies requiring actions in other jurisdiction  Role of younger/newer agencies  Dealing with novel issues, no experienced agency  Accumulation of judgment and reasoning