SINGAPORE Law and Practice Contributed by: Lim Chong Kin and Corinne Chew, Drew & Napier LLC
3.9 Requests for Information During the Review Process In both Phase 1 and Phase 2 reviews, the Commis - sion may request additional or more comprehensive information when it is clear that such information is necessary. Applicants are encouraged to comply with such information requests promptly and within such deadline as the Commission deems appropriate, so that the merger assessment can be completed within the indicative timeframes. If the requested information cannot be furnished within the deadline, the appli - cants should promptly request an extension of time from the Commission. The Commission may “stop the clock” and thereby extend the relevant time period for assessing the merger. If the applicant fails to provide the additional information within the deadline and any time exten - sions that have been granted, the Commission has the power to determine the application by not giving a decision and then commence its own investigation into the merger using its statutory powers. 3.10 Accelerated Procedure For merger situations which clearly raise no com - petition concerns, a streamlined assessment will be applied by the Commission and completed within 25 working days. This is expected to apply to the majority of merger situations. The Commission employs the SLC test in assessing mergers. There is no precise threshold as to what con - stitutes an SLC. In applying the SLC test, the Commis - sion will compare the likely state of competition in the scenario where the merger has proceeded against the scenario where the merger has not proceeded (often referred to as the “counterfactual”). The counterfac - tual should not involve a violation of competition law. Typically, the appropriate counterfactual will be the prevailing conditions of competition, as this may be indicative of future competition in the market with - out the merger. However, in certain circumstances, the Commission may take into account likely and 4. Substance of the Review 4.1 Substantive Test
imminent changes to the structure of competition to accurately reflect competition in the market without the merger – eg, where one of the parties is genu - inely failing, also known as the failing firm defence. To qualify for the failing firm defence, the merger party must be able to show that it is in such a dire situation that, without the merger, it would exit the market or be unable to meet its financial obligations, and that there is no less anti-competitive alternative to the merger. 4.2 Markets Affected by a Transaction As noted in 2.5 Jurisdictional Thresholds , the Com- mission will seek to define the relevant market(s), in order to assess the extent of competition in each rel - evant market both with and without the merger. How - ever, as market shares alone do not provide deep insight into the nature of competition between firms in a market, an SLC could potentially be established at thresholds below those set out in 2.5 Jurisdictional Thresholds , if other relevant factors provide strong evidence of an SLC. 4.3 Reliance on Case Law While market definition depends on the specific facts and circumstances of the particular merger under assessment or investigation, the Commission may be guided by market definitions from other jurisdictions if such definitions are relevant, based on the facts of the case. 4.4 Competition Concerns In assessing whether a merger situation might have the effect of an SLC in the relevant market, the Com - mission will look at: • the extent to which the merger parties are close competitors; • competition from existing competitors operating in the relevant market; • competition from potential competitors; and • the degree of countervailing buyer power of cus - tomers, such that some or all customers would be able to prevent the merged entity from raising prices. For horizontal mergers, the Commission will consider whether the merger situation gives rise to non-co- ordinated effects or co-ordinated effects, or both.
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