SINGAPORE Law and Practice Contributed by: Lim Chong Kin and Corinne Chew, Drew & Napier LLC
notifications for guidance, or a decision, may be nec - essary for parties that have not notified their mergers. The Commission considers that ancillary restrictions are agreements, arrangements or provisions that are directly related and necessary to the implementation of a merger. Pursuant to an exception under the Third Schedule of the Competition Act, restrictions that fit within this definition are excluded from the applica - tion of: • Section 34 of the Competition Act, which prohibits anti-competitive agreements; and • Section 47 of the Competition Act, which prohibits abuse of a dominant position. However, a restriction is not automatically deemed to be directly related to the merger simply because it is agreed at the same time as the merger, or is expressed to be so related. To be directly related, the restriction must be economically connected with the merger but ancillary or subordinate to its main object. A restriction is likely to be necessary if, for example, in the absence of the restriction, the merger would not go ahead or could only go ahead at substantially higher costs, over an appreciably longer period, or with considerably greater difficulty. In determining the necessity of the restriction, the Commission will con - sider whether its duration, subject matter and geo - graphical field of application are proportionate to the overall requirements of the merger. In addition, merger parties must demonstrate that they have chosen the option that is the least restrictive of competition, if equally effective alternatives are avail - able for attaining the same objective. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties are permitted to be involved in the review process; see 7.2 Contacting Third Parties for further information. Third parties may also make complaints to the Commission.
In general, parties that suffer loss or damage as a result of a competition law infringement will have a pri - vate right of action to seek relief in civil proceedings. Such rights will only arise after the Commission has made a decision that a merger has infringed the Sec - tion 54 Prohibition and the appeal period has expired, or upon the determination of an appeal if one has been brought. Private actions must be brought within two years from the date of the Commission’s decision or from the determination of the appeal, whichever is later. Relief may be in the form of an injunction or decla - ration, damages, and such other relief as the court deems fit. 7.2 Contacting Third Parties The Commission gathers information about the com - petitive effects of the merger from the merger parties and from third parties, including customers, competi - tors, suppliers and other regulatory bodies and gov - ernment departments, where relevant. The Commission will invite third parties to comment on the merger and commitments (if any) via a public Details of notified mergers will be published on the public register when the Commission receives a sat - isfactory application. The details published will usually include: • the names of the merger parties; • a description of the transaction; • a description of the merger parties’ business activi - ties (worldwide and in Singapore); • a description of the overlapping goods or services, including brand names; • a description of substitute goods or services; and • the applicant’s views, including but not limited to the definition of the relevant markets, barriers to entry and countervailing buyer power, and the competitive effects of the merger. Merger parties are required to provide a confidential version of the Form M1, identifying confidential infor - mation using square brackets, and accompanied by consultation exercise. 7.3 Confidentiality
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