KUWAIT Law and Practice Contributed by: Alex Saleh, Asad Ahmad, Khaled Al Makhezeem and Liana Rashid, GLA & Company
2.9 Market Share Jurisdictional Threshold
• Where the value of the registered assets of the parties to the concentration in Kuwait exceeds the value of KWD2.5 million, accord - ing to the audited financial statements of the last fiscal year before the concentration. 2.6 Calculations of Jurisdictional Thresholds The calculation of the thresholds appears to be based on the audited financial statements of the persons involved in the economic concentration, which will generally be the participants to the transaction. The Kuwait Competition Law does not specifically address the issue of currency conversion or whether to rely on the book or fair market value of the assets being appraised. In the authors’ experience, clients have provided the value of assets on the basis of the audited financial statements submitted to the Kuwait CPA. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds Based on the authors’ experience, the Kuwait CPA primarily requires audited financial state - ments of the entities involved in a transaction to ensure the accuracy of the amounts provided. As a result, the authors recommend their clients provide precise audited financial statements, as the Kuwait CPA has zero tolerance for mislead - ing or false information and will impose penal - ties. 2.8 Foreign-to-Foreign Transactions In short, foreign-to-foreign transactions are sub - ject to merger control and other measures. The Kuwait Competition Law applies to acts commit - ted inside or outside the State of Kuwait when - ever the acts prevent, restrict or distort free com - petition in the State of Kuwait.
The Kuwait Competition Law does not specify a market share jurisdictional threshold. However, disclosure of estimated market share is part of the notice application to the Kuwait CPA. 2.10 Joint Ventures Joint ventures are subject to merger control. A joint venture of two or more persons, resulting in performing, on a lasting basis, an autonomous economic or commercial activity, regardless of its legal form or the activity to be practised, is considered an economic concentration. There are no other special rules provided for in the Kuwait Competition Law in terms of joint ven - tures. 2.11 Power of Authorities to Investigate a Transaction The Kuwait Competition Law confers the capac - ity of law enforcement officers upon the employ - ees of the Kuwait CPA. These officers are entitled to enter individual premises and workplaces to investigate violations of the Kuwait Competition Law. They are also entitled to access records, books and documents as well as to obtain infor - mation, data, documents and access to physical or electronic files held by a government or non- governmental body. In addition, they may seek the assistance of police officers when necessary. 2.12 Requirement for Clearance Before Implementation Implementation of a transaction may not law - fully proceed before an approval is issued by the Kuwait CPA. 2.13 Penalties for the Implementation of a Transaction Before Clearance The Kuwait CPA is entitled to take corrective action for violations of the Kuwait Competition
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