Procedural Fairness and Transparency in Australian Merger Regulation and the Use of Enforceable Undertakings

Abstract

Many of the procedural fairness and transparency issues that arise in Australian merger regulation spring from the voluntary and predominantly informal and extra-statutory nature of merger review. In Australia, merging parties have a choice of two separate avenues through which to obtain merger approval.1 They can apply to the Australian Competition and Consumer Commission (ACCC, the Australian competition regulator) for either informal merger clearance or formal merger authorisation. Despite the fact that the ACCC’s informal clearance does not provide merging parties with any statutory immunity, it is by far the most common form of merger clearance sought by merging parties. However, as it ..