1.
The relationship between FDI
screening and merger control
reviews
30 November 2022
Antonio Capobianco and Gaetano Lapenta
OECD Competition Division

2.
Merger control in OECD+5 jurisdictions
2
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Share
of
OECD+5
countries
with
a
merger
regime
Year
2673 2764 3083 3183 3046
2527
1526 1475
1458 1553 1573
1818
3330 3545
3657
3911 3755
3493
793
860
958
853
838
710
8585 8815
9202
9731 9889
8906
0
1000
2000
3000
4000
5000
6000
7000
8000
9000
10000
2015 2016 2017 2018 2019 2020
Americas Asia-Pacific Europe Other Total notifications
Merger control regimes in OECD+5
countries
• 98% jurisdictions have a merger
control rules
• From 20 countries in 1990 to 43 in
2022
Merger notifications and decisions
in OECD+5
• 11.254 in 2021

3.
FDI screening in OECD+5 jurisdictions
3
FDI screening regimes in
OECD+5
• From 5 in 1990 to 24 in 2022
• Sector coverage from 8% in
1986 to 27% in 2022
Caseload of FDI screening
• Increased in all OECD countries
that provided data
• Significant increase, especially
from 2015 onwards

4.
Risks of tensions between outcomes from two
separate review mechanisms
• Expansion of FDI screening mechanisms
raises question of interaction and
potential conflicts, e.g. blocking
efficiency enhancing mergers or designing
inconsistent remedies
• FDI screening and merger control have
distinct goals but often mutually sustaining
– Single-supplier risks
4

5.
Institutional design and national co-operation
• Public interest considerations under merger control
remain the exception
• When reviews are separate, is there a need for
enhanced national co-operation?
– E.g., UK: ISU and CMA “expect to coordinate, as may
be appropriate, to manage interactions between the
two regimes”
– FDI screening may support competition authorities on
assessing competitive risks and barriers to entry,
providing information to define markets, identifying
efficiencies, designing remedies
– Co-operation on designing remedies and mitigation
measures
5

6.
Mutual support between FDI screening and
merger control
• Common challenges, e.g.
– Defining proxies to capture all (and only)
transactions that may potential raise concerns
– Gun-jumping: leveraging each other’s
information to detect non-notified transactions?
• Common principles: transparency and
predictability
– New FDI screening mechanisms have detailed
rules on assessment criteria, procedures,
content of mitigation measures
6

7.
Interesting points for discussion
7
Conflict
• Is there a real risk of conflicts?
• If so, what is the extent of this risk?
• Can remedies and mitigation measures undermine each other?
Co-operation
• Is enhanced co-operation between FDI screening and merger
control necessary?
• What is the room for international co-operation?
Common principles and challenges
• How can the two reviews inform each other (transparency,
predictability)?
• How can they be leveraged to address common challenges
(e.g., failure to notify transactions)

8.
8
Thank you!
Antonio Capobianco,
antonio.capobianco@oecd.org
Gaetano Lapenta, gaetano.lapenta@oecd.org