New certainty on trigger for merger control notice?

Under the Competition Act, a merger control notification for an acquisition must be filed within 30 days of execution of any agreement or “other document”. The term “other document” has been explained under the Combination Regulations to mean “any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets”.

The Combination Regulations further provide that in a case where such an “other document” has not been executed, but the intention to acquire is communicated to the central government, a state government or a statutory authority, “the date of such communication shall be deemed to be the date of execution of the other document for acquisition”.

Previous cases

In the Exide-ING case, the Competition Commission of India (CCI) in its order dated 19 February 2013 noted that: (i) Exide Industries and ING Vysya Life Insurance Company had initialled three share sale and purchase agreements (with the existing shareholders) to acquire the remaining 50% stake of ING Vysya; and (ii) pursuant to these initialled agreements, ING Vysya had filed an application with the Insurance Regulatory and Development Authority for the transaction. Accordingly, the CCI held that for the purpose of the Competition Act, the date of communication by ING Vysya to the statutory authority would be deemed to be the date of execution of the “other document”.

Kunal Chandra is a counsel at Trilegal and Gautam Chawla is an associate. Trilegal is a full-service law firm with offices in Delhi, Mumbai, Bangalore and Hyderabad.