AUSTRALIA: Takeovers Panel publishes consultations on revised Australia takeovers guidance

Monday March 16 2015

The Takeovers Panel has published two consultation papers proposing revisions to Australia takeovers guidance.

Guidance Note 2 – Reviewing Decisions

This consultation proposes changes in relation to consenting to a review application. The Panel is proposing that GN 2 be amended to include the policy considerations the President applied in Careers Australia Group Limited 03R [2015] ATP 2, and those applied in an earlier refusal of consent in Austral Coal Limited 03R [2005] ATP 15. This will provide guidance to parties considering applying for a review of a Panel decision not to make a declaration or orders.

In particular, revised GN 2 proposes the following:

• a new paragraph 25 states that the deadline for an application for review is no later than two business days after the date on which the decision was made

• a new paragraph 28 states the process for requesting the President’s consent to a review

• a new paragraph 29 sets out factors the President will take into account when deciding whether to consent to a review, and

• paragraph 42 is amended to note that an undertaking to pay the application fee is preferable to immediate payment if the review application requires consent of the President, in case it is refused.

Comments are being sought on whether the Guidance Note should include any additional information about the process of applying for a review of a Panel’s decision or seeking the President’s consent to review.

Comments are also being sought on whether the factors the President will take into account in deciding whether to consent (set out in paragraph 29) are appropriate and whether there are any other factors the President should consider.

The consultation is open until 15 April 2015.

Guidance Note 4 – Remedies General

This consultation proposes changes in relation to parties offering to remedy any unacceptable circumstances.

The revised GN 4 proposes the following changes:

• a new paragraph 9 stating that the Panel will usually inform the parties of its intention to make a declaration and invite comments on the draft document. The Panel may (even at that stage) still be prepared to consider a remedy for the unacceptable circumstances without the need for a declaration and orders. A corresponding footnote restates that the Panel welcomes efforts by the parties to resolve matters and

• amendments to paragraph 39 to remind parties that the Panel may accept an undertaking to resolve matters without the need for a declaration and that a party can offer undertakings at any point in the Panel`s process.

Comments are sought on whether the Guidance Note should include any additional information about the process of offering a solution to the Panel to resolve the matter.

Comments are also sought on whether it is appropriate for the Panel to decline to make a declaration, even if it is satisfied that unacceptable circumstances exist, if the parties offer to remedy the unacceptable circumstances (whether through undertakings or otherwise).

This consultation is open for comment until 10 April 2015.

Click here for the consultation on GN 2. Click here for the consultation on GN 4.