INDONESIA Law and Practice Contributed by: Chandrawati Dewi, Gustaaf Reerink and Bilal Anwari, ABNR Counsellors at Law
A party may also choose to participate in a vol - untary pre-closing consultation. The procedure will be similar to the post-closing notification, via the KPPU’s portal. This process will be entirely confidential and the KPPU’s opinion on the con - sultation will not be published. 3.10 Requests for Information During the Review Process Requests for information during the review pro - cess are common within the first 30 business days following the submission of the notification. Normally, within two to four weeks of submis - sion, the KPPU will invite the notifying party to attend a clarification meeting for a question-and- answer session, which is usually followed by a request for additional information. Information requests normally are ancillary in nature. However, requests may be more com - plex if the transaction raises competition con - cerns in Indonesia. Information requests do not suspend the review. 3.11 Accelerated Procedure Under the Merger Control Guidelines, the review process can be expedited if the KPPU deter - mines that a notification qualifies for a simplified assessment, as the transaction is not expected to raise competition concerns. A transaction may qualify for a simplified assessment if it has the following characteristics: • absence of overlapping business activities; • absence of vertically integrated business activities; • should overlapping business activities exist, a limited joint market share of those activities; • should vertically integrated business activi - ties exist, a Herfindahl–Hirschman Index (HHI) below the required threshold for each of those activities;
• lack of potential for tying or bundling, or a network effect; • the notification was submitted within 30 busi - ness days of commencement of the transac - tion; or • the transaction involves an acquisition result - ing in an undertaking gaining sole control (from joint control with another undertaking). A simplified assessment may be initiated either by the KPPU or at the request of the notifying party. If the KPPU approves the request for a simplified assessment, it should provide its opin - ion on the transaction within 14 business days. However, the authors have never seen this pro - cedure implemented in practice. The KPPU uses the HHI or concentration ratio. The KPPU will carry out a comprehensive assessment and examines other factors if: • the HHI falls between 1,500 and 2,500 and the change in the HHI exceeds 250; or • the HHI exceeds 2,500 and the change in the HHI exceeds 150. 4.2 Markets Affected by a Transaction The KPPU identifies which markets might be impacted by the transaction by determining the relevant products and geographical market. For relevant product markets, the KPPU identifies similar or substitute products based on demand and supply aspects. For relevant geographical markets, the KPPU assesses the distribution, selling, marketing coverage, and the location where the products can be located. 4. Substance of the Review 4.1 Substantive Test
299 CHAMBERS.COM
Powered by FlippingBook