In brief

As part of its strategy of increasing its engagement with Asian competition regulators and developing long term relationships with those regulators, the Australian Competition and Consumer Commission (ACCC) has announced that it has just entered into an Memorandum of Understanding (MoU) with The Ministry of Commerce of the Government of the People's Republic of China (MOFCOM), the Chinese regulator responsible for administering China’s merger control regime.

Implications of the MOU

The ACCC has indicated that it expects increased communication and co-operation in relation to mergers which affect both Chinese and Australian markets. Under the terms of the MoU, and subject to various confidentiality and privacy obligations, the ACCC and MOFCOM will exchange information on market definition, theories of harm and, where appropriate, the design of remedies to address any concerns. The MoU also contemplates increased co-operation in relation to competition law and policy and enforcement matters.

In announcing the signing of the MoU, the Chairman of the ACCC, Rod Sims, stated that “…the rise of antitrust in Asia means the merger processes and remedies imposed by our counterparts have an increasing prospect of affecting Australian companies and consumers”.

It is worth noting that in the context of the Competition and Consumer Act (CCA), the ACCC is explicitly permitted to disclose information acquired from use of its powers under s155 of the CCA to 'a foreign government body' where the disclosure would enable that body to perform any of its functions. This would override any confidentiality obligations which might otherwise exist. Whether or not this might result in an increased use by the ACCC of its powers under s155 to gather information in relation to proposed mergers remains to be seen.