In a practical guide produced in partnership with LexisNexis, one of the leading online providers of legal information on merger control and foreign direct investment (“FDI”) control regimes across the world and their conditions of application, partners Nathalie Jalabert-Doury and Jean-Maxime Blutel discuss key issues on merger control in New Caledonia that may be relevant to businesses and their advisors, including the following:
- Have there been any recent developments regarding the New Caledonia merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in New Caledonia?
- Under New Caledonian merger control law, is the control test the same as the EU concept of ‘decisive influence’? If not, how does it differ and what is the position in relation to 'minority shareholdings'?
- Are joint ventures caught by the national merger control provisions (including non-structural, cooperative joint ventures)?
- What are the merger control thresholds and would a purely foreign-to-foreign transaction be caught (commenting on any ‘effects’ doctrine/policy if relevant)?
- Are there any specific issues parties should be aware of when compiling and calculating the relevant turnover for applying the jurisdictional thresholds?
- Where the jurisdictional thresholds are met, is notification mandatory and must closing be suspended pending clearance?
- Is there any discretion to review transactions that fall below the notification thresholds?
- Is it possible to close the deal globally prior to local clearance?
- Is there a deadline for filing a notifiable transaction and what is the timetable thereafter for review by the New Caledonia competition authority?
- Who is responsible for filing a notifiable transaction (noting also whether there is a specific form/document used and an applicable filing fee)?
- Please confirm/comment on the penalties for failing to notify or suspend transactions pending clearance and the competition authority's record/stance in terms of pursuing parties for failing to notify relevant transactions (commenting, if relevant, on any statute of limitations regarding sanctions for infringements of the applicable law).
- Are there any other 'stakeholders' other than the competition authority (for example, any ‘sector regulators’ who might have concurrent powers)?
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