Armchair critics are ignorant about processes of competition authorities
While in an ideal world merger processes would be fast-tracked in the interests of commercial certainty and efficiency, one has to bear in mind the competition authorities are there for a reason. They are there to protect the interests of customers and consumers. If the competition authorities don't carefully scrutinise problematic transactions, there is no reason for them to be there.
Perhaps the solution in part is that mergers that don't present any issues should be approved as quickly as possible, and the Competition Commission and the DTIC should not try to use the public interest provisions of the Competition Act to achieve some form of economic realignment. One must also distinguish delays occasioned by the tribunal being understaffed from timing issues associated with a proper and careful assessment of transactions. The tribunal is understaffed, and there needs to be a concerted effort between the DTIC, the tribunal and the competition law community to seek to address the issue as soon as possible. Hopefully, if the situation can be remedied, this could fundamentally improve timing difficulties that arise from there not being sufficient tribunal members.
However, the shortage of tribunal members does not detract from the responsibility and statutory obligation of the tribunal to carry out its mandate in relation to complex transactions.
Ultimately it must be remembered there will always be a certain category of mergers that will require very careful scrutiny, and the competition authorities must be allowed to do their job in the interests of discharging their mandate to the public.
Potentially the more insidious outcome from all the armchair criticism is that the competition authorities feel under pressure to wave transactions through that require more careful consideration. An appropriate balance needs to be struck between not compromising commercial efficiency and economic growth that comes from transaction-based commercial activity, while at the same time ensuring the competition authorities deliver on their statutory mandate and safeguard the interests of consumers and the public as a whole.
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