"Gun jumping" and merger control in the Digital Age

On 1 January 2010 the International Association of Athletics Federations (IAAF) introduced the “one-and-done” rule: one false start lead to the elimination of the athlete.  No athlete was immune from its operation. In the 100 metre final of the 2011 World Championships in Athletics the then world record-holder, Jamaica’s Usain Bolt, committed a false start – and was disqualified.  Bolt’s countryman, Yohan Blake, took the gold medal.  Bolt subsequently took the gold medal in the 200 metre final in the fourth fastest time ever.

Whilst the false-start analogy is often invoked in competition law commentary around the world, the concept of “gun jumping” can have highly significant consequences and attract substantial penalties in the context of merger control.  Numerous recent cases globally emphasise the need for care and often extreme, to the point of pain-staking, patience in merger transactions, particularly by competition lawyers.

“Gun jumping” in mergers has highly significant competition consequences and attracts substantial penalties globally.  In Australia, in the Cryosite case in 2019 the ACCC was successful in its first gun jumping case. In the Digital Age, with the employment of fast-paced information and communication technologies (including artificial intelligence), even greater pressure is being placed on merger regulation to ensure effective compliance with lawful merger practices.

Wilson, “Gun jumping and merger control: The Digital Age’s hair-trigger?” (2019) 40 European Competition Law Review 527