The New Zealand Commerce Commission's position towards gun jumping is that "while parties to proposed mergers must naturally engage with each other to explore the merits of a transaction prior to binding themselves and consummating a deal", pre-merger discussions and coordination concerns can arise. Businesses contemplating an M&A transaction with their competitors must therefore bear in mind a number of competition law considerations.
The New Zealand Commerce Commission (NZCC) recently published amended cartel leniency policy guidelines, updating its previous guidelines from 2011. While the changes are mostly cosmetic, the updated guidelines indicate a potential change in the NZCC's approach towards penalty discounts for second-in applicants that seek to fall within its cooperation regime.
The commerce and consumer affairs minister recently tabled a bill in Parliament that will enable the Commerce Commission to undertake market studies. The bill also provides for matters concerning the Commerce Act's competition law regime – namely, repealing its cease and desist regime and empowering the commission to accept enforceable undertakings in order to resolve restrictive trade practice enforcement cases under the act.
The Commerce (Criminalisation of Cartels) Amendment Bill was recently tabled in the House of Representatives. It introduces a new criminal offence for cartel conduct, as well as a requirement for intention for criminal prosecution and a defence against criminal prosecution for individuals who believed that a cartel provision was reasonably necessary for a collaborative activity. This development overturns the previous government's decision to remove criminal penalties for cartel conduct from the bill.
There were a number of key competition law developments in New Zealand during 2017, including the enactment of the Cartels Act, the postponement of the reform of the prohibition on taking advantage of market power and a significant increase in the proportion of declined merger clearances. In addition, the new Labour-led government stated that it is keen to empower the Commerce Commission to undertake market studies before the end of 2018.
The Supreme Court recently dismissed an appeal, holding that the right to replacement under an insurance policy cannot be assigned where the insured party has not incurred the reinstatement costs. The case should be considered by homeowners and their brokers when choosing a replacement home insurance policy and by purchasers and their advisers if assignment of claims is in prospect.
The Court of Appeal recently upheld a High Court judgment, confirming New Zealand's adaption of the recast rule. In doing so, the Court of Appeal has set out the context for adopting the revised rule. However, as the appellant has been granted leave to appeal to the Supreme Court, the final word is awaited.
The Supreme Court recently confirmed that the requirements outlined in Section 292 of the Companies Act 1993 are all that is required in order to void an insolvent transaction. In particular, the court confirmed that there is no additional common law principle stating that the transaction must have diminished the net pool of assets available to creditors. This is a helpful decision which brings certainty to the test for voidable transactions and avoids adding unnecessary complexity into the corporate insolvency regime.
The Supreme Court recently overturned the position set out in Joint Action Funding (that lawyer-litigants are not entitled to costs). While the certainty created by the court will be a relief to lawyer-litigants and organisations that are regularly represented in court by employed lawyers alike, the intervening decisions indicate that the days of the status quo may be numbered – in particular, the differential treatment of lawyer-litigants and lay-litigants.
The High Court recently dismissed an interim injunction against Viagogo AG, holding that it did not have jurisdiction to consider and determine the application without service on Viagogo. The case clarifies that the courts will not overlook the requirement for service and highlights the difficulty of seeking an interim injunction against companies that are based overseas.
The EU General Data Protection Regulation (GDPR) will come into full effect on May 25 2018 and will impact New Zealand businesses that do business with EU residents or entities or have a presence in the European Union. In addition, the privacy commissioner recently released a report recommending that the Privacy Act be substantially amended (including to comply with the GDPR) and the Ministry of Justice has indicated that privacy reform is a key initiative.