SINGAPORE Law and Practice Contributed by: Lim Chong Kin and Corinne Chew, Drew & Napier LLC
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications If merger parties have included ancillary restric - tions in their notification application, a clearance decision will cover ancillary restrictions as well. Separate notifications for guidance, or a deci - sion, may be necessary for parties that have not notified their mergers. The Commission considers that ancillary restric - tions are agreements, arrangements or provi - sions 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 application of: • Section 34 of the Competition Act, which pro - hibits 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 sim - ply 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 economi - cally connected with the merger but ancillary or subordinate to its main object. A restriction is likely to be necessary if, for exam - ple, 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 diffi - culty. In determining the necessity of the restric - tion, the Commission will consider whether its duration, subject matter and geographical 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 effec - tive alternatives are available 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 Par- ties 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 private 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 Section 54 Prohibition and the appeal period has expired, or upon the deter - mination 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 dec - laration, damages, and such other relief as the court deems fit. 7.2 Contacting Third Parties The Commission gathers information about the competitive effects of the merger from the merger parties and from third parties, including customers, competitors, suppliers and other
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