AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
5.2 Parties’ Ability to Negotiate Remedies Parties can negotiate remedies (undertakings) throughout the review process subject to strict statu - tory deadlines. The ACCC has an overwhelming preference for structural remedies, specifically the divestiture of overlapping business units. Behavioural remedies (eg, access regimes, price caps, informa - tion barriers) are actively discouraged and are only accepted in circumstances where structural remedies are not feasible and the behavioural commitments require minimal ongoing regulatory monitoring. Under the primary SLC review, the ACCC strictly confines remedies to curing competition concerns. If parties apply for clearance under the Public Benefit pathway, the ACCC may accept remedies to guarantee broader non-competition economic benefits. 5.3 Legal Standard Remedies must completely and permanently alleviate the identified competition concerns to ensure that a transaction no longer substantially lessens competi - tion in any relevant market. The legal standard is abso - lute: the remedy must restore or maintain the competi - tive dynamic that would otherwise be lost. The ACCC will not accept remedies that merely mitigate harm or introduce complex, fragile regulatory structures into the affected market(s). 5.4 Negotiating Remedies With Authorities Under the 2026 mandatory administrative regime, the procedural and legal mechanics of remedies have fun - damentally shifted. Timing of Negotiations and Strict Deadlines Discussions regarding remedies can begin during the confidential pre-notification phase. However, if for - mal concerns arise during the review, the legislation imposes strict statutory deadlines for the merging par - ties to formally propose remedies: • no later than 20 business days after commence - ment of a Phase 1 review; • no later than 60 business days after commence - ment of a Phase 2 review; and • no later than 35 business days following the lodge - ment of a Public Benefit application.
If a proposal is submitted within these timeframes, it typically triggers an automatic “clock stop” to allow the ACCC to market-test the remedy with third parties. If not lodged within these timeframes, the ACCC is not obliged to consider the proposal. The Power to Propose and Impose Conditions A defining feature of the new 2026 regime is the shift in administrative power. The ACCC is no longer restrict - ed to merely accepting or rejecting “undertakings” voluntarily offered by the parties. During the review, the ACCC can propose remedies on its own motion if it believes a specific structural fix is required to cure an SLC. The ACCC now holds the unilateral statutory power to grant a clearance subject to conditions. This means the ACCC can effectively impose remedies that were not entirely agreed to by the parties. Parties’ Recourse to Imposed Conditions If the ACCC issues a clearance subject to conditions (eg, a highly burdensome divestiture) that the merging parties find commercially unacceptable, the parties are not forced to complete the deal. They have two primary options, to: • abandon the transaction, in which case, the clear - ance simply lapses; or • appeal, in which case, the parties can apply to the Tribunal for a merits review of the ACCC’s decision. The Tribunal, standing in the shoes of the decision- maker, also holds the power to impose conditions. It can affirm the ACCC’s imposed conditions, vary them to be more or less restrictive, or substitute its own clearance conditions entirely. 5.5 Conditions and Timing for Divestitures For transactions with clear and substantive competi - tive overlaps, deal teams will often initiate remedy discussions during the confidential pre-notification phase. Once the formal review begins, remedy pro - posals are subject to the statutory deadlines identified in 5.4 Negotiating Remedies With Authorities . In 2026, the ACCC’s standard practice is to require an “upfront buyer” for any divestiture. The ACCC must approve the specific buyer, ensuring they pos - sess the financial capacity, expertise and intent to be
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