e-book2011

NEWSLETTER 2011

142

Granting of Access.

The Guidelines Project sets forth that if

the competition problems that occur as a result of a concentration

operation cause foreclosure, the Parties may grant access to the key

information such as infrastructure, networks, know-how, patents, or other

intellectual property rights which will have the same effect as a structural

commitment. Additionally, the Guidelines Project underlines that the

commitments should include monitoring methods and devices, so that

these commitments can be easily monitored.

Termination of Long-term Exclusive Agreements.

Concentrations

can cause existing contractual arrangements to be inimical to effective

competition. This is in particularly true for exclusive long-term

agreements. Therefore, the Guidelines Project regulates that the parties

to the transaction may present the termination of these agreements as

a commitment to the Board.

The Guidelines Project also obliges the

parties to represent that the foreclosure effect is de facto removed.

Conditions that the Implementation of Commitments are

Subject to.

The Guidelines Project brings detailed dispositions on the

implementation of commitment pertaining to the divestiture of business,

and general dispositions on the implementation of the other commitments.

The relevant dispositions are as follows:

The Implementation of a Commitment Regarding Divestiture of

a Business.

The implementation of this commitment contains several

phases.

Determination of a Suitable Purchaser.

This phase contains two

phases: the phase of the conclusion of a final agreement and the phase of

finalization of divestiture.

The first phase, which is the conclusion of the final agreement, also

contains two sub-phases. The first sub-phase entitled as “the period while

the parties look for a suitable purchaser” should be completed within six

months. If the parties do not succeed, the second sub-phase begins. In this

period, a divestiture trustee obtains the mandate to divest the business

Even the Guidelines Project stipulates annulment of exclusive agreements for a long time, the

title of the section is “Remedies Including Modification of Exclusive Agreements for Long

Time”.