NEW ZEALAND Law and Practice Contributed by: Ian Beaumont, Tom Gillespie and Sam Kember, Russell McVeagh
entities (such as sovereign wealth funds, state-owned enterprises, public pension funds and their associated entities) from a single country. Even in cases where OIO consent is not required under the usual significant business assets or sensitive land pathways, buyers will still need to consider whether the transaction involves New Zealand land or assets that are used in a “strategically important business”. If so, the transaction will be subject to the “national security and public order call-in power”, which allows the Minister of Finance to call in the transaction for review and to block, impose conditions on or unwind the transaction if the Minister considers it poses a significant risk to New Zealand’s national security or public order. This power is intended to be used very rarely. Notification is voluntary, except in certain spe - cific cases. 2.4 Antitrust Regulations In New Zealand, the Commerce Act, which is adminis - tered and enforced by the NZCC, regulates the acqui - sition of assets of a business or shares which have the effect or likely effect of substantially lessening competition (SLC) in any New Zealand market. The Commerce Act applies to both domestic and offshore transactions. New Zealand operates a voluntary merger clearance regime under which parties may, but are not required to, seek clearance or authorisation from the NZCC before completing a business combination. Clearance is granted, meaning the NZCC allows a transaction to proceed, where it is satisfied that an acquisition is not likely to give rise to SLC in any market. By contrast, authorisation is a more intensive process under which the NZCC may approve a transaction that does give rise to SLC, provided that the transaction results in such a benefit to the public that it should be permitted. Notwithstanding the voluntary nature of the regime, the NZCC retains the ability to file proceedings in the High Court seeking financial penalties and divestiture orders in respect of non-notified mergers that may give rise to SLC. Significant reforms to the merger regime are on the horizon. The New Zealand Government recently introduced the Commerce (Promoting Competition
and Other Matters) Amendment Bill, which facilitates wide-ranging reforms to the Commerce Act. The Bill is expected to pass in the middle of 2026, with the changes to take effect by the end of 2026. Key sub - stantive changes include: • Introducing a statutory definition of SLC which may include conduct “creating, strengthening or entrenching a substantial degree of power in the market”. This definition is intended to capture transactions such as “killer acquisitions” – that is, acquisitions by a dominant company of a nascent or potential competitor, to prevent them from becoming future competitors. Notably, unlike similar reforms in Australia, this amendment is proposed to apply throughout the Commerce Act, including to the misuse of market power and anti- competitive agreement prohibitions. • Empowering the NZCC to assess the cumulative effect of a series of acquisitions over a three-year timeframe, addressing concerns around “creep - ing acquisitions”. A creeping acquisition refers to a strategy by which a company gains market dominance through a series of smaller, individually non-problematic acquisitions over time that, taken together, may give rise to SLC. • Introducing a “stay and hold” power, enabling the NZCC to postpone completion of a merger for up to 40 working days while it assesses competi - tion risks. The Bill also confers a “call-in” power to require companies to seek clearance where the NZCC has reasonable grounds to believe a trans - action has the potential to give rise to SLC. • A maximum statutory time period for merger reviews of 140 working days (or 160 working days for authorisations), extendable in 20 working-day increments by agreement in complex cases. • Empowering the NZCC to accept and enforce behavioural undertakings to mitigate competi - tion concerns, closing a gap in the current merger regime which only permits structural divestiture undertakings (ie, the sale of assets or shares), although parties would need to first establish that a structural remedy would be “insufficient”. 2.5 Labour Law Regulations Key employment obligations in New Zealand arise under the Employment Relations Act 2000 (ERA), Holi -
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