NEW ZEALAND Law and Practice Contributed by: Sarah Keene, Jordan Cox, Antonia Horrocks and Victoria Fowler, Webb Henderson
During pre-notification discussions, the NZCC may, in certain circumstances, provide an initial indication of its preliminary view on a divestment. If the NZCC iden - tifies competition concerns that are not addressed by any undertakings offered, it will set these out in a statement of issues and, where necessary, a subse - quent statement of unresolved issues. These state - ments may also: • identify any concerns arising from proposed divest - ment undertakings; and • suggest that the applicant consider offering additional divestment undertakings as a means of resolving the identified competition concerns. The NZCC cannot propose remedies or impose a rem - edy not agreed by the parties. 5.5 Conditions and Timing for Divestitures A divestment undertaking is a detailed document set - ting out how the divestment will be effected, including the timeframe within which the divestment must be completed. While the appropriate timeframe will depend on the circumstances of each case, the NZCC will generally allow a period of up to six months for the applicant to satisfy the terms of the divestment undertaking, which can occur post-completion If an undertaking is breached, the NZCC may seek penalties of up to NZD500,000 for each act or omis - sion that occurred. 5.6 Issuance of Decisions The public version of the decision will be published in the NZCC’s case register on its website. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions The NZCC has required divestments and prohibited transactions recently. It will review foreign-to-foreign transactions as it does local transactions. In 2024, it prohibited a global merger in the DJ soft - ware market, where the target was a New Zealand
firm; in 2023, it approved the acquisition by Sika AG of MBCC Group subject to divestment of the entire MBCC business in New Zealand. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Ancillary restraints that are included in the sale and purchase agreement and protect the goodwill of the business being sold are subject to the merger con - trol process. No separate notification is required, and the clearance decision will cover notified ancillary restraints. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties, including customers, competitors and other market participants, are routinely involved in the NZCC’s merger review process. The NZCC issues a Statement of Preliminary Issues after registration of a clearance seeking third-party views, and for non- notified mergers actively engages third parties. In both cases, it will seek information via submissions, infor - mation requests and interviews, and may also involve them following the publication of issues statements. The NZCC process is highly transparent. It publishes a public version of the clearance application and seeks third-party views on this, and also publishes third- party submissions on its website. While third parties cannot appeal the NZCC’s sub - stantive decision, they can make submissions, pro - vide evidence, request confidentiality for commercially sensitive information, and gain access to certain non- confidential materials published by the NZCC. They retain independent rights outside the administrative process, including the ability to seek injunctive relief or bring proceedings in the High Court in relation to an anti‑competitive merger.
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