NEW ZEALAND Law and Practice Contributed by: Sarah Keene, Jordan Cox, Antonia Horrocks and Victoria Fowler, Webb Henderson
• working day 120 – NZCC meets the applicant to discuss SOUI response; • working day 130+ – NZCC will make its final deci - sion, potentially after considering any divestment undertaking offered by the parties and “market testing” the proposed divestment with third parties. The NZCC typically does not stop the clock on its pro - cesses, although it has started to do so on some mat - ters where there have been material delays outside its control – for example, if the parties ask the NZCC to wait for process steps in other international regulatory processes to be completed before it progresses. For an authorisation application, the NZCC has a 60-working-day statutory timeframe to make a deci - sion, and a similar ability to seek extensions. The proposed law reform would amend these time - frames to require a final decision within 140 working days (or 160 working days if agreed by the parties) for merger clearance applications, and 160–180 (for the same reasons) for authorisation applications. Check the status of these amendments if using this guide after 1 March 2027. 3.8 Pre-Notification Discussions With Authorities Parties can and are recommended to engage in pre- notification discussion. These generally take between two and four weeks, during which a draft application is provided to the NZCC, often along with a confidential fact briefing. The NZCC may ask the parties questions or recommend that they add certain things to their filing. Afterwards, the parties update the application and lodge the filing. 3.9 Requests for Information During the Review Process Requests for Information (RFIs) are common dur - ing a review process. How burdensome they are will depend on the application and the level of information the NZCC has access to. Any information or docu - ments absent from an application could be sought by way of an RFI.
Whilst not common, an RFI could stop the clock where the applicant, target or an interested party requests further time to respond to an information request. 3.10 Accelerated Procedure While there is no formal “fast-track” or expedited stat - utory process for clearances or authorisations, appli - cants can speed up their timeline by engaging in pre- notification discussions, submitting high-quality draft applications and responding rapidly to NZCC RFIs. A transaction is prohibited by the statute if it would have the effect, or likely effect, of substantially lessen - ing competition in a market. A substantial lessening of competition is “likely” if there is a real and substantial risk, or a real chance, that it will occur. This requires that a substantial less - ening of competition is more than a possibility, but does not mean that the effect needs to be more likely than not to occur (ie, it does not need to have a greater than 50% probability of occurring). Whether the sub - stantial lessening of competition is likely is a matter of judgement based on the evidence. 4. Substance of the Review 4.1 Substantive Test The application of this test can differ depending on whether it applies in a clearance process or in an investigation under the Commerce Act. The NZCC will decline a merger clearance application if it is not satisfied or “in doubt” that the merger would not be likely to substantially lessen competition in a market. However, if the merger is investigated under the Act, then the NZCC or third party challenging the merger will need to provide evidence in court that a substan - tial lessening of competition is likely. In addition to unilateral effects theories of harm in mergers between direct competitors, the NZCC will consider vertical, conglomerate and co-ordinated effects theories of harm. It will consider the effects of the merger on potential competition and innovation where relevant.
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