Asia Pacific merger control update

2023 has seen significant merger reform in the Asia Pacific region as antitrust regulators and Governments seek to ensure their regimes are fit for purpose. This alert provides a snapshot of the recent updates to key merger regimes in APAC, including China, India, Indonesia, Japan, Philippines, South Korea and Australia.

There has been a high level of merger reform across the Asia Pacific region in the first half of 2023. Many of the updates provide clarity on the merger review processes and, in some cases, raise the filing thresholds or broaden exemptions from filings, meaning fewer filings will be required. In contrast, Australia's proposed shift to a mandatory suspensory regime and India's introduction of an additional threshold will likely increase the number of filings.

China

In China, revised regulations to support the country's amended competition law came into force on 15 April 2023. The revised regulations include the Regulations on the Review of Concentrations between Undertakings (RRCU), as well as regulations on Monopoly Agreements, Abuse of Dominance and Abuse of Administrative Power Provisions.

In particular, the RRCU provides additional guidance on the following:

• the concept of control, which includes a number of factors that should be considered to define control, but also preserves the discretion of the State Administration for Market Regulation ("SAMR") in order to determine control on a case–by–case basis;
• turnover calculation, including guidance that turnover of jointly controlled undertakings should be evenly distributed amongst those that have joint control;
• the procedure for stopping the clock during a merger review, including conditions that will trigger a "stop the clock", and that will restart the clock, as well as time limits; and
• a "call in", right under which SAMR may require a merger notification if there is evidence that a transaction may have the effect of excluding or restricting competition, despite not meeting the thresholds.

Overall, the RCCU will provide additional certainty for businesses, particularly in respect of merger review timetables. However, the below threshold call, in right, means businesses will need to consider the competitive implications of their transactions, even where the thresholds are not met. They do not, as of yet, confirm changes to the merger filing thresholds, which remain in draft form.

India

Significant amendments to India's competition law, including those to the merger control framework, received Presidential assent on 11 April 2023, and await Gazettal to come into force. Relevantly, the merger control framework has been amended to introduce a "deal value" threshold, whereby notification to the Competition Commission of India ("CCI") will be triggered if the value of the transaction exceeds 20 billion Indian Rupees ("INR 20") (c. 240 million United States Dollars ("USD") / 220 million Euros ("EUR")) and the target enterprise in question has "substantial business operations in India". This threshold will apply in addition to the existing thresholds.

The amendments decrease the approval timelines for transactions. For Phase I reviews, if the CCI does not form its prima facie opinion within 30 calendar days, then the transaction shall be deemed to have been approved. For Phase II reviews, the outer time limit for final approval has been reduced from 210 days to 150 days.

Although there is now an additional notification threshold that is likely to capture more transactions, the reduced timing for Phase I reviews appears to seek to balance the additional notification burden for those mergers that do not raise significant competition concerns.

Indonesia

In Indonesia, new merger control rules came into effect at the end of March 2023. Under the new regulation by the Indonesian Competition Commission, only transactions where both parties have business activities in Indonesia would be notifiable, unlike the previous rules where only one party was needed to have a connection to the country. Only assets or sales in Indonesia will be calculated in determining whether a transaction breaches the notification thresholds, unlike the previous system that included global totals.

This table outlines the amendments to the filing thresholds as against the pre-existing requirements:

The amendments also change the merger review process, with an expedited timeframe for assessment and a more streamlined process. The changes pull back the previously broad application of Indonesian merger filing requirements and will be welcomed by global corporations that have a limited presence in—and a significant presence outside of—Indonesia. The streamlined process, in addition to the ability to approach the Business Competition Supervisory Commission ("KPPU") prior to filing and shorter mandated timeframes, will bring Indonesia into line with many other less onerous global merger control jurisdictions.

Japan

The Japan Fair Trade Commission (JFTC) has released guidelines on sustainability, which include a chapter on business combinations. In particular, the JFTC states that while enterprises may implement business combinations for the purposes of strengthening their Research and Development ("R&D") capabilities and streamlining their business activities in their efforts towards the realisation of a green society, such business combinations are still prohibited where they would substantially restrain competition in a market.

The guidelines also indicate that the JFTC will regard products manufactured using fossil fuels as their power source, as well as products manufactured using electricity as their power source, as in separate markets. Similarly, the guidelines indicate that the JFTC may regard renewable energy–based electricity generation as a "sub-market" within the market for electricity generation, indicating a shift by the regulator towards more narrowly defined markets, which may increase competition concerns surrounding consolidation in the supply of renewable energy.

Philippines

On 18 May 2023, the Philippine Competition Commission (PCC) issued guidelines on non–horizontal merger reviews. The guidelines outline the analytical techniques, practices and enforcement policy of the PCC in respect of non–horizontal mergers, and will assist businesses by providing insight into the PCC's substantive analysis of transactions, thereby enabling them to better address any competition concerns arising from a proposed transaction.

South Korea

On 20 June 2023, the Cabinet approved proposed amendments to the Monopoly Regulation and Fair Trade Law which will expand the scope of exemptions from merger notification requirements to include: (i) inter-affiliate mergers, (ii) establishment of private equity funds and (iiI) interlocking directorships of less than ½ of the board members. The proposed amendments will also enable companies to submit voluntary commitments as remedies and obtain conditional clearance for anti-competitive mergers. Following Cabinet approval the proposed amendments must then be approved by the National Assembly.

These proposed reforms are part of a broader initiative being undertaken by the KFTC to update its merger review process, which is intended to reduce the burden on companies and more effectively respond to the increasing number of merger notifications it has received in recent years.

Australia

As we previously discussed, in April 2023, Australian Competition and Consumer Commission (ACCC) Chair Gina Cass–Gottlieb released the ACCC's proposal to Government for a new mandatory merger regime, including changes to the substantial lessening of competition test and factors to be considered in the assessment of mergers under the Competition and Consumer Act 2010 (Cth).

(a) a mandatory and suspensory regime for transactions above certain (yet to be determined) thresholds;

(b) upfront information requirements when notifying the ACCC of a transaction;

(c) ACCC call in powers to assess the competitive effects of transactions below notification thresholds;

(d) notification waivers to be available for non–contentious mergers. The ACCC anticipates that the majority of transactions will be dealt with in this way, similar to the existing pre-assessment system;

(e) The ACCC will need to be positively satisfied that the transaction is unlikely to result in a SLC; and

(f) The ACCC will retain the public benefit test where merger parties are unable to satisfy the ACCC or the Australian Competition Tribunal in which the transaction is unlikely to result in a SLC. Significantly, this will be through a second stage merger clearance option, post the initial SLC determination.

The proposal is a significant shift from the current informal clearance regime in Australia. As with many other jurisdictions in the region, the threshold applied to mandatory clearance will be key to the effective operation of the regime, which we expect will likely come into play in 2024.

 
Charlie Hacker (White & Case, Graduate, Sydney) contributed to the development of this publication.

_{1For mergers between two or more banking companies, the sales threshold does not apply if the value of assets does not exceed Rp 20,000,000,000,000 (~1.35 billion USD).}

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