AUSTRALIA Law and Practice Contributed by: Alberto Colla, Keith Tan, Hugh McDonald and Dean Zinn, MinterEllison
The Courts If the proposed transaction is structured as a scheme of arrangement, the Federal Court of Australia or a State Supreme Court is required to review and approve the scheme. There are two court hearings in the scheme process. At the first hearing, the court determines wheth - er exercising its discretion to convene the scheme meeting is appropriate. If the scheme is approved by shareholders at that meeting, the target (scheme) company returns to court for a second hearing seeking orders to approve the scheme. Court approval of a scheme is primar - ily concerned with ensuring that procedural and disclosure requirements have been satisfied; the court’s role is not to assess the commercial mer - its of the scheme. Australian Competition and Consumer Commission (ACCC) The ACCC, as Australia’s antitrust agency, regu - lates M&A transactions to ensure they do not substantially lessen competition. It has the abil - ity to take enforcement action in court (including to seek to injunct a transaction) or may require undertakings (eg, a divestment) before clearing a transaction. On commencement of Australia’s new merger control reforms on 1 January 2026 (see 3.2 Significant Changes to Takeover Law ), the ACCC will become the primary decision maker and may prevent the implementation of a transaction without having to take enforcement action in court. Foreign Investment Review Board (FIRB) FIRB examines certain proposals by foreign persons to invest in Australia, including through M&A transactions. FIRB makes a recommen - dation to the Treasurer of the Commonwealth Government whether to object to the proposed investment. This recommendation is based on FIRB’s assessment of whether the proposed for -
eign investment is contrary to Australia’s national interest. The overwhelming majority of applica - tions for FIRB clearance are approved (see fur - ther 2.3 Restrictions on Foreign Investment ). Takeovers Panel The Takeovers Panel is the primary forum for resolving disputes about a change-in-control transaction involving an ASX-listed public com - pany or an unlisted public company with more than 50 shareholders. It was established to resolve takeover disputes swiftly and cost-effec - tively while removing tactical litigation from the courts. The Takeovers Panel can make declara - tions of unacceptable circumstances and has the power to make a broad range of remedial orders. 2.3 Restrictions on Foreign Investments Foreign investment in Australia is primarily regu - lated by the Foreign Acquisitions and Takeovers Act 1975, which is administered and enforced by FIRB. FIRB reviews foreign investment propos - als and advises the Treasurer of the Common - wealth Government on whether those proposals are contrary to Australia’s national interest. For M&A transactions, some key points regard - ing foreign investment restrictions in Australia include the following. Notification requirement “Foreign persons” must notify FIRB before making a significant investment in an Australian entity or business. A subset of “foreign persons” known as “foreign government investors” (FGIs) are required to notify FIRB of a broader range of proposed transactions. Percentage and monetary thresholds Depending on the type of investment, certain percentage and monetary thresholds apply,
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