Late in April 2013—following a many-month delay while approval from Chinese and Eastern European antitrust regulators was pending—two Japanese companies, Sony Corp. and Olympus Corp., announced that their medical devices merger had at last received final authorization. “Sony Olympus Medical Solutions Inc.,” as the new joint venture will be known, was officially established as of April 16, 2013, according to industry sources.
While Sony is best known for its electronics and gaming technology and Olympus is perhaps most famous for its cameras, Olympus controls roughly 70% of the global market for medical endoscopes, according to an Agence France-Press report reproduced on the IndustryWeek website. The parties hope to utilize Sony’s electronics expertise in digital imaging to further build on Olympus’ long history in optics and produce innovative new medical devices.
The circumstances surrounding this merger, which did not involve existing competitors and seemingly posed minimal antitrust/competition law concerns, provides a reminder that—in a global market comprised of many players with divergent interests and varied regulatory approval structures—the merger and antitrust approval process can be more than a straightforward analysis of likely competitive effects. Agency workloads, the need to consult with other areas of government, and lack of coordination among various regulators conducting independent reviews can significantly extend the time required to obtain all necessary clearances.
Some press reports suggest that the approval delay may have in part been a result of an international dispute between the Japanese government and China regarding the countries’ conflicting sovereignty claims over the Senkaku islands in the East China Sea. This dispute ignited anti-Tokyo protests in China and prompted a consumer boycott of Japanese goods there, according to another Agence France-Press report reproduced on the New Age website. However, as that account notes, “China is often slower than other countries in clearing antitrust applications,” an issue which China’s Ministry of Commerce (“MOFCOM”) has itself acknowledged. The delay, in other words, could have simply been the result of insufficient resources or the time that MOFCOM needed to complete its required consultations with other Chinese agencies.
Firms interested in expanding their global presence through cross-border transactions should be aware that obtaining competition law clearances in multiple jurisdictions can significantly affect the overall deal timeline. Upfront planning and consultation with counsel experienced in each jurisdiction can help mitigate surprises and unwanted publicity surrounding delayed transactions.