NEW ZEALAND Law and Practice Contributed by: Fiona Ashby, Luke Bowers, Daniel Erickson, Jessica Phillips, Natalie Foster, Shelley Slade-Gully, Tina Liu and Theresa Le Bas, Tompkins Wake
nificant amendments to the merger control regime are expected following the anticipated passage of the Commerce (Promoting Competition and Other Matters) Amendment Bill in mid-to-late 2026, as dis - cussed in the New Zealand Trends and Development chapter in this guide. 6.2 Merger Control Procedure The Commerce Commission operates a voluntary clearance process with the following stages and indicative timeframes, where available: • pre-notification engagement with the Commerce Commission by the applicant; • registration of clearance application; • day five: Commerce Commission publishes “State - ment of Preliminary Issues” and draft investigation timeline; • day 30: Commerce Commission completes initial interviews and information gathering; • day 40: Commerce Commission either issues Notice of Clearance or sends a “Statement of Issues”; • applicant responds to Statement of Issues; • Commerce Commission issues a “Statement of Unresolved Issues”; and • final decision to issue either a Notice of Clearance or a Decline of Clearance. The timeframes are indicative only and subject to extension by the Commerce Commission. This pro - cedural framework is also expected to be subject to amendment following the passage of the Commerce (Promoting Competition and Other Matters) Amend - ment Bill, anticipated in mid-2026. 6.3 Cartels The Commerce Act 1986 contains prohibitions against “cartel provisions” – ie, provisions in a con - tract, arrangement, understanding or covenant that have the purpose, effect or likely effect of price fixing, restricting output and/or market allocation. Conduct can be caught if any act or omission that forms part of that conduct takes place in New Zea - land, including agreements formed outside New Zealand where that conduct affects a market in New Zealand.
A breach of the prohibition against agreeing to, requir - ing or giving effect to a cartel provision gives rise to a pecuniary penalty and criminal liability. In addition, cartel provisions are unenforceable. The prohibition against cartel provisions has the fol - lowing exceptions: • where the parties to the provision are engaged in “collaborative activity” and the cartel provision is reasonably necessary for the purpose of that col - laborative activity – a “collaborative activity” is an activity in trade that is not carried out for the domi - nant purpose of lessening competition between the parties; • vertical supply contracts where the provision relates to the maximum price of resupply and does not have the dominant purpose of lessening com - petition; and • price fixing provisions relating to: (a) the collective acquisition of goods or services; (b) advertising of the price of the resupply of goods or services collectively acquired; (c) collective price negotiation; or (d) the purchase and resupply of goods or ser - vices by an intermediary who is a party to the contract. Businesses should note that the cartel regulation regime is also expected to be amended following the passage of the Commerce (Promoting Competition and Other Matters) Amendment Bill, anticipated in mid-2026. 6.4 Abuse of Dominant Position Section 36 of the Commerce Act 1986 prohibits a per - son with a “substantial degree of power” in a market from engaging in conduct that has the purpose, or is likely to have the effect of, substantially lessening competition either in that market or in another market where that person, or an interconnected person, sup - plies or acquires goods. The Act does not define when a person has a substan - tial degree of power in the market, but the requirement for a “substantial degree of power” is a lower thresh - old than “dominance” and was introduced to align the New Zealand regime with that in Australia.
768 CHAMBERS.COM
Powered by FlippingBook