NEW ZEALAND Law and Practice Contributed by: Sarah Keene, Jordan Cox, Antonia Horrocks and Victoria Fowler, Webb Henderson
2.10 Joint Ventures Joint ventures that involve any acquisition of assets or shares will be subject to the merger control provi - sions of the Commerce Act if they may have the effect of substantially lessening competition in any relevant market. New Zealand does not have jurisdictional thresholds. 2.11 Power of Authorities to Investigate a Transaction The NZCC does not have a specific “call-in” power. However, under the Commerce Act, the NZCC or an affected party may apply to the High Court for an injunction in respect of an acquisition of assets or shares that has, or is likely to have, the effect of substantially lessening competition in a market. The NZCC has taken such action in respect of contem - plated and completed transactions. If a transaction has already completed, the NZCC may apply to the High Court for a divestment order within two years of completion. In addition, any person who suffers loss or damage as a result of a breach of Section 47 of the Com - merce Act (namely, an acquisition of assets or shares that has, or is likely to have, the effect of substantially lessening competition in a market) may bring a claim for damages within three years. Current law reform proposals will give the NZCC call- in powers and allow it to require a party to seek clear - ance or authorisation for a merger that has not been voluntarily notified. Check the status of these amend - ments if using this guide after 1 March 2027. 2.12 Requirement for Clearance Before Implementation New Zealand operates a voluntary merger con - trol regime. Accordingly, parties are not required to seek clearance or authorisation before completing a transaction. If the parties choose not to apply, in the absence of any court intervention, they may imple - ment the transaction at any time. The NZCC may only consider clearance or authori - sation applications in respect of “proposed” acquisi -
of factors including shareholding levels, sharehold - er voting practices, board appointment powers and vetoes, industry knowledge and expertise, and con - tractual connections. There have been occasions where a substantial degree of influence was found in the acquisition of an 8% shareholding. 2.5 Jurisdictional Thresholds There are no jurisdictional thresholds in New Zealand. Mergers and acquisitions may be caught if they affect competition in any market in New Zealand, no matter how small or narrow that market might be. The NZCC has a track record of taking action in relation to small, narrow, local markets, as well as on significant, large and international mergers. 2.6 Calculations of Jurisdictional Thresholds No jurisdictional thresholds apply. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds No jurisdictional thresholds apply. 2.8 Foreign-to-Foreign Transactions The Commerce Act extends to mergers or acquisitions outside of New Zealand by any person or resident car - rying on business in New Zealand to the extent that such conduct affects a market in New Zealand. There are merger-control-specific jurisdictional provisions that allow the High Court to make orders in respect of foreign-to-foreign transactions affecting a market in New Zealand, which do not depend on the target having assets in the jurisdiction. However, a connec - tion with New Zealand is required for the Court to have jurisdiction; typically, this is in the form of sales within the jurisdiction. 2.9 Market Share Jurisdictional Threshold A market in New Zealand can be affected so as to trigger a filing if only one of the target or acquirer has market presence in the jurisdiction, for example, where there are vertical or conglomerate issues or where potential competition may be excluded by the transaction.
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