공정거래법상 국제적 M&A에 대한 역외적 관할권 - 비교법적 고찰을 포함하여 -

Setting notification thresholds for merger review aims at determining the desirable number of notifications and then jurisdictional boundaries of merger control. It has of great importance above all in case of multi-jurisdictional merger. How to delineate jurisdictional limit of national merger control relates to its effective enforcement and possibility of sovereignty impairment. The Korea Anti-Monopoly and Fair Trade Act(hereafter “the Act”) provides with “effects doctrine” as a general principle of any possible extraterritorial application(Article 2-2 of the Act). For this purpose, the domestic effects must be direct, substantial and reasonably foreseeable. As for merger control, the Act sets separately certain notification thresholds focusing on domestic revenues of 20 billion Won held by each foreign participants, which shoule be interpreted to specify the principle of domestic effects provided in Article 2-2. Therefore the notification thresholds are overlapping with the reviewing jurisdiction of the Korea Fair Trade Commission(hereafter “the KFTC”). The KFTC, however, tried to review and impose remedy on some extraterritorial merger whose participants had no or just a small size of domestic turnover in Korea without considering an obligatory notification. Such practices seem to reflect the misunderstanding of the KFTC about the purpose and role of the notification thresholds. The tight linking between pre-merger notification and review procedure is likely to enhance legal certainty and foreseeability and to possibly avoid jurisdictional conflicts. Comparative analysis shows the common stance that foreign-to-foreign mergers not subject to obligatory notification cannot be reviewed ex officio by any competition authorities. In this context, it is suggested that the KFTC should refrain from ungrounded activism and, if necessary, present rationale sufficient for extraterritorial application of merger control in official decisions.