15 Sep 2017

CU LAB: Doing Business in Australia ‒ Merger clearance and competition law

Australia's competition regulator will ask for more information from foreign investors looking to acquire businesses here, says Michael Corrigan.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.

TRANSCRIPT

Australia has an active merger control regime headed by the Australian Competition and Consumer Commission, locally called the ACCC. It's a well-resourced and fairly sophisticated organisation with a long track record of reviewing deals. It works closely with agencies around the world.

Last year the ACCC reviewed 288 transactions and cleared 88% of those; 73% were cleared in 15 business days or less, which is reasonably quick. However this left 33 transactions that were subjected to a longer and more detailed review, in some cases up to six months. Some of those transactions were opposed, some were withdrawn by the parties.

Recently the ACCC signalled it wants to intensify its review processes in the larger mergers. It's taken some advice from other authorities, including The United States Department of Justice, and has signalled that it wants to ask parties to submit more information about their activities and their business dealings and it will take a longer time to review some of these deals.

Why is that? I think it's partly due to the fact that in Australia we have a Competition Tribunal which can review some of the larger merger matters and the ACCC's record before the Tribunal hasn't been that good. The Tribunal has dismissed the ACCC's concerns in three recent transactions.

So looking forward, what can we expect? I think coming into Australia you will find in the larger transactions there will be a more complicated, a longer merger review process, and that's something that needs to be factored into the planning around the major transactions.