Legal News & Analysis – Asia Pacific – Australia – Competition & Antitrust

On 22 May 2014, the Australian Competition and Consumer Commission (ACCC) announced that it had finalised a Memorandum of Understanding on Anti-Monopoly Cooperation (MOU) with the Ministry of Commerce of the People’s Republic of China (MOFCOM). The MOU recognises “the importance of co-operation in the field of competition for promoting the effective implementation of competition law and policy”. The MOU has now been published by the ACCC. (Available on the ACCC website).

The MOU puts into place a framework for communication between the ACCC and MOFCOM on issues such as market definition, theories of harm, competitive impact assessments and the design of remedies in merger cases which are subject to review by both agencies.

The ACCC and MOFCOM have also agreed to greater cooperation between them in several other areas, including:

• exchanging information regarding developments in their respective competition legislation, enforcement and policy;
• providing comments on each other’s draft competition laws and regulations;
• sharing enforcement experiences where appropriate;
• sharing practice and experiences in relation to law enforcement capacity building; and
• exchanging views over issues relating to international cooperation on competition law and policy.

The MOU reflects the rapid development of competition laws in China and across Asia, and the increasing importance of the Asian competition regimes on business in countries such as Australia. Chairman of the ACCC, Mr Rod Sims, said “the rise of anti-trust in Asia means the merger processes and remedies imposed by our counterparts have an increasing prospect of affecting Australian companies and consumers”.

At a practical level, the MOU will likely result in information and documents relating to a filing in China being provided to the ACCC, and vice-versa (subject to confidentiality constraints). This will have particular implications where a merger is required to be filed under China’s mandatory merger filing regime, but does not necessarily need to be notified to the ACCC under Australia’s voluntary merger filing regime. In “borderline” cases, the fact that MOFCOM may provide information about the transaction to the ACCC will encourage the parties to the transaction to take a cautious approach and notify the deal in both jurisdictions.

For further information, please contact:

Nigel Parr, Partner, Ashurst
[email protected] 

Mats Johnsson, Partner, Ashurst
[email protected]

Ross Mackenzie, Partner, Ashurst
[email protected]

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