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

Wendy Ng

From: Antitrust Procedural Fairness

D. Daniel Sokol, Andrew T. Guzman

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 27 September 2022

Fair, reasonable, and non-discriminatory terms (FRAND) — Price transparency — Unfair trading conditions — Basic principles of competition law — Enforcement and procedure

This chapter examines procedural fairness and transparency in Australian merger regulation. It outlines the different ways that merging parties can seek competition merger approval and the mechanisms in place to provide procedural fairness and transparency to merging parties and others. It explains how enforceable undertakings are used by the Australian Competition and Consumer Commission (ACCC) and the Australian Competition Tribunal to conditionally approve mergers. It then examines the main due process and transparency issues that arise in the context of merger-related enforceable undertakings. These relate to the ability to review or challenge the ACCC's decision to accept, reject, vary, or withdraw an enforceable undertaking; the nature of the negotiation and decision-making process relating to enforceable undertakings; the use of the ACCC's information gathering powers during merger review; and the procedural fairness protections for third parties.

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