The ACCC has announced its much anticipated proposals
for merger law reform. The proposals represent a seismic shift in
approach and, if implemented, would fundamentally change the way in
which merger control clearances are sought, reviewed and contested
in Australia. We explain what the proposed changes to
Australia's merger control laws could mean for companies doing
business in Australia.
Although merger litigation is rare in Australia, the ACCC has
lost every merger challenge that it has brought in the past 20
years, including several successive high-profile merger cases in
the last decade.1 While the courts in each case
identified various failings and gaps in how the ACCC ran and
supported the cases, the ACCC Chairman, Rod Sims, places the blame
on deficiencies in Australia's merger laws. Mr Sims has
suggested that: (i) the burden on the ACCC of proving that a
transaction is likely to substantially lessen competition in court
proceedings is unrealistically high;
