SINGAPORE Law and Practice Contributed by: Lim Chong Kin and Corinne Chew, Drew & Napier LLC
The Commission may extend the timeline for the Phase 1 review period by up to an additional 20 work - ing days where the complexity of the merger situation merits increased scrutiny before deciding whether a Phase 2 review may be required. Therefore, the Phase 1 review may be up to 50 working days in such merger situations. The Commission will inform the applicant(s) of such extensions as soon as practicable. The Phase 2 review timeline may also be extended in exceptional circumstances, and the Commission will notify the applicant(s) in writing in advance. Merger parties should note that the indicative time - frames for both Phase 1 and Phase 2 reviews are not binding on the Commission and that the Commission has the power to “stop the clock” during the review – eg, if the merger parties fail to provide the Com - mission with the additional information requested within the stipulated time period (or any extensions of time given), or if commitments are being considered. Where the Commission decides to “stop the clock”, the administrative timeline will be extended. 3.8 Pre-Notification Discussions With Authorities Parties may either engage the Commission in pre- notification discussions (PNDs) or seek confidential advice before submitting Form M1 and commencing the formal notification process. PNDs To expedite the review process, merger parties intend - ing to make an application may engage the Commis - sion in PNDs to discuss the content of the notification and the timing of the formal notification. No specific timetable is given, since the Commission states that the length and formality of PNDs depend on the merger parties’ preference, the transaction’s complexity and the concerns that may be raised. The Commission states that PNDs are most useful where a draft Form M1 is provided. In PNDs, the Commission will generally not give its views on whether a merger situation is likely to pro - ceed to Phase 2 review or if it might lead to an SLC.
While parties can engage in PNDs for anticipated mergers that may not yet be made public, PNDs are not intended to relate to purely speculative or hypo - thetical transactions. Parties should demonstrate a good-faith intention to proceed with the transaction – eg, by already having a draft agreement in place. Confidential Advice Parties may approach the Commission for confiden - tial advice on an anticipated merger, especially at the stage when merger parties are concerned about pre - serving the confidentiality of the transaction. However, any such confidential advice provided by the Com - mission on anticipated mergers is not binding on the Commission, and is given without third-party consul - tations. This process is only available if the Commission is satisfied that the following conditions are met: • the merger must not be completed but there must be a good-faith intention to proceed with the trans - action (evidenced to the satisfaction of the Com - mission); • the merger must not be in the public domain, unless exceptional circumstances apply; • the merger situation must raise a genuine issue relating to competitive assessment in Singapore (eg, if there is a lack of relevant precedents) and therefore the Commission’s approach to the merger situation is genuinely in doubt; and • the requesting party or parties are expected to keep the Commission informed of significant developments in relation to the merger in respect of which confidential advice was obtained (eg, the completion date or abandonment of the merger). If the Commission decides that the above conditions are not met, it will securely destroy the confidential information that was submitted by the merger parties and ensure that no sensitive data remains accessible. The Commission will not disclose the fact that confi - dential advice was requested, nor the parties’ infor - mation, to other organisations or foreign competition authorities unless relevant waivers are given by the merger parties.
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