The following Competition practice note provides comprehensive and up to date legal information covering:
Assessment of the competitive effect of a merger involves examining the degree to which the merging firms are close and effective competitors of each other. This judgment must be forward-looking, considering how competition might change in future years. Relevant factors include: possible obsolescence of products; the state and development of any key technology; the resources of the firms; their level of debts; and whether the activities, the subject of the merger are core or peripheral.
At its most acute, it may be that one of the merging firms is simply unlikely to be able to continue in business in the future, for example, because of its losses and level of debt or its core products or technology having become out of date. In such a case the acquiring company will argue that its target is or, over the appropriate future horizon, will not be an effective competitor or will abandon the market altogether. This plea has come to be known as ‘the failing firm’ defence (and the merger itself may sometimes be described as a ‘rescue’ merger).
The ‘failing firm’ defence was first accepted in the US under strict conditions. Initially, however, the European Commission questioned its appropriateness and relevance in merger analysis. Likewise the UK Monopolies and Mergers Commission (as it then was), which in ICI/Kemira concluded that
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When restructuring is considered rather than formal insolvency proceedings (see Practice Note: Benefits of restructuring over formal proceedings) the company may want to ensure that relevant creditors quickly enter a standstill agreement to gain some breathing space to consider a restructuring
On the disposition of a property (whether by way of conveyance, transfer or charge), the party making the disposition will normally provide a title guarantee which implies standard form covenants for title. A landlord may give a title guarantee when granting a lease, but this is rare in practice.
Community order requirementsCommunity order requirements are set out in the Criminal Justice Act 2003 (CJA 2003), as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) and the Offender Rehabilitation Act 2014 (ORA 2014). Criminal Justice Act 2003, s 152(2)
BREXIT: As of 31 January 2020, the UK is no longer an EU Member State, but has entered an implementation period during which it continues to be treated by the EU as a Member State for many purposes. As a third country, the UK can no longer participate in the EU’s political institutions, agencies,
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