AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
a vigorous competitor, before it grants clearance for the main transaction. If the ACCC permits divestiture post-completion, it imposes strict, confidential time - lines (typically 3–6 months), overseen by an ACCC- approved independent divestiture manager. Non-compliance with an accepted divestiture or behavioural undertaking exposes the relevant party to significant enforcement action and civil penalties as well as the possibility of the ACCC seeking court orders to unwind the transaction. 5.6 Issuance of Decisions The ACCC issues formal, written administrative deci - sions. In the pursuit of transparency, both clearance and prohibition decisions, alongside a detailed state - ment of reasons, are published on the public Acqui - sitions Register. The ACCC works carefully with the merging parties to redact genuine business secrets and confidential commercial data prior to publication. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions Since the mandatory regime only commenced on 1 January 2026, and Phase 2 reviews statutorily take 90 business days (plus “clock stops” for remedy negotia - tions), there has not yet been a high volume of com - pleted remedy determinations. However, a number of complex cross-border and domestic transactions have been referred to Phase 2 reviews to resolve competition issues (with parties proposing remedies in some instances). If a foreign-to-foreign transaction triggers Australia’s notification thresholds and pre - sents local competitive overlaps giving rise to compe - tition concerns, the ACCC will routinely seek structural remedies and will not typically accept vague global commitments to resolve local issues post-completion. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications An ACCC clearance decision generally encompasses standard ancillary restraints directly related to the transaction (eg, standard, reasonably tailored non- compete clauses on a seller to protect the acquired
goodwill). However, the ACCC actively scrutinises these restraints. If it determines a non-compete is excessively broad in duration or geographic scope, it will declare it unnecessary, exposing the parties to prosecution under the CCA’s cartel and anti-com - petitive agreement provisions if they proceed with it. Highly unusual or restrictive ancillary arrangements should be flagged early in pre-notification. Crucially, a merger clearance does not grant automat - ic immunity from the CCA’s cartel prohibitions. If an ancillary restraint is found to be “severable” and not strictly necessary for the protection of the acquired goodwill, it remains subject to independent enforce - ment. To manage this, parties with highly restrictive or non-standard restraints should consider seeking concurrent authorisation to ensure the entire deal structure is immune from future prosecution. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties (competitors, customers, suppliers) are highly influential in the Australian merger review pro - cess. The ACCC actively solicits their views during the investigative and consultation phases, including in respect of remedies proposed by the merger par - ties. Commercial evidence from third parties regard - ing market dynamics often informs the ACCC’s SLC assessment. If the ACCC grants clearance, any third party with sufficient standing has a statutory right to appeal the ACCC’s decision to the Tribunal for a lim - ited merits review. 7.2 Contacting Third Parties The ACCC actively contacts third parties during the investigative phases of its review (with experience suggesting that this can also occur before a review formally commences). This ranges from informal tel - ephone interviews to extensive written questionnaires. In complex Phase 2 reviews, the ACCC frequently uti - lises its compulsory powers to force third parties to produce internal data and testify under oath. Further - more, any remedy proposed by the merging parties is strictly “market tested” with these third parties to verify its viability.
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