MALAYSIA

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Content last updated: 24-02-2021

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1. Supranationality

1.1 Membership of Supranational Organization

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

No. Although Malaysia is a member of the Association of Southeast Asia Nations (ASEAN), ASEAN is essentially an inter-governmental organization and not a supranational organization.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Not applicable.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Malaysia does not have a general merger control regime. Instead, there are sector-specific notification regimes for the aviation and communications industries.

Aviation industry: Filing is voluntary

Communications industry: Filing is voluntary

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

In both the aviation and communications industries, the notification regimes are non-suspensory. Theoretically, transactions do not need to be notified prior to the implementation/completion of the agreement or the announcement of a public bid, or the acquisition of controlling interest, but it is advisable to notify if the thresholds are met.

It is advisable to obtain authorization from the Malaysian Communications and Multimedia Commission before engaging in conduct that may be construed to have the purpose or the effect of substantially lessening competition in a communications market.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

Malaysia does not have a general merger control regime. Instead, there are sector-specific notification regimes for the aviation and communications industries.

Aviation industry / Communications industry:

The following types of transactions are caught by the merger regime if they fall within the aviation or communications industries:

two or more undertakings previously independent of one another merge;

one or more undertakings acquire control (direct or indirect) of the whole or part of one or more other undertakings; or

as a result of the acquisition of the assets, or a substantial part of the assets, of another undertaking the acquirer is going to replace, or substantially replace, the other undertaking in the business, or part of the business, in which it was engaged immediately before the acquisition.

“Aviation Services” are defined by the Aviation Commission Act as any of the following services:

the carriage of passengers, mail, or cargo for hire or reward by air or by using an aircraft where either the origin or destination is within Malaysia (collectively “Carriage by Air”);

the provision of prescribed ground handling services in Malaysia;

the operation of an aerodrome in Malaysia for the takeoff and landing of any aircraft engaged in the carriage of passengers, mail, or cargo for hire or reward; and

any other service determined by the Malaysian Aviation Commission to be necessary or expedient for the Carriage by Air.

NOTE re communications industries: A transaction is only caught by the merger control regime if at least one of the undertakings concerned is a holder of a Malaysian communications licence.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

Aviation industry: Joint ventures created to perform, on a lasting basis, all the functions of an autonomous economic entity fall under the provisions of the Aviation Commission Act.

Communications industry: The creation of a joint venture which performs, on a lasting basis, all of the functions of an autonomous economic entity and involves changes in the shareholding structure of the firm are caught by the merger control regime.

Paragraph 3.11 of the Merger Guidelines specifies that a “lasting basis” means that the joint venture is intended to, and can, operate for such a length of time that the joint venture involves a lasting change in the structure of the parent company, the structure of the market and the competition in the market.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

Aviation industry:

The Malaysian Aviation Commission provides that “control” of an enterprise exists if, by reason of rights, contracts or any other means, or any combination of rights, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the enterprise.  Such control could exist by:

a) the ownership of the assets of the enterprise;

b) the right to use all or part of the assets of the enterprise; or

c) the rights or contracts which enable the exercise of decisive influence regarding the composition, voting or decisions of the enterprise.

Control is acquired by a person or an enterprise if he or it either:

a) has direct control, i.e. becomes a holder of the aforesaid rights or contracts,

b) is entitled to use the other aforesaid means; or

c) has indirect control, i.e. although not becoming such a holder or being entitled to use those other means, he or it acquires the power to exercise the rights derived therefrom.

The existence of control in an enterprise depends on the capability of a person or any other enterprise to exercise such decisive influence regardless of whether the person or the other enterprise actually exercises such influence.

In determining the existence of indirect control, all relevant factors should be taken into consideration including the existence of links between an acquiring enterprise and an enterprise enjoying indirect control.

Communications industry:

The fundamental principle is the acquisition or transfer of control. Paragraph 3.16 of the Merger Guidelines establishes that “control” is the ability to exercise decisive influence over the activities of another firm by reason of rights, contracts, or other means.

Control can be either legal (ownership of more than 50% of the voting rights in a firm) or de facto. De facto control is control arising from the practicalities of the controlling party’s position which allow it to influence the controlled parties’ activities and affect its key strategic commercial behaviour. This is a fact-specific analysis, but examples of rights giving rise to de facto control in the Merger Guidelines are restrictive sourcing agreements (e.g., an agreement that one party will cease all production and only source its requirements from another), financial/lending agreements that confer the ability to exercise decisive influence over another, and the ability of a minority shareholder to veto decisions essential to the strategic commercial behaviour of the undertaking through additional rights (such as decisions relating to budgets or business plans). 

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Aviation industry / Communications industry: There is no specific guidance on this.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

Aviation industry:

“Merger party” (undertaking concerned) is defined in the Guidelines on Substantive Assessment of Mergers as an enterprise that is a party to an anticipated merger or a party involved in a merger. This may refer to an enterprise that

i. merges with another enterprise;

ii. acquires another enterprise, or

iii. is acquired by another enterprise or the merged entity. 

Communications industry:

The Malaysian Communications and Multimedia Commission does not provide guidance on this.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

Aviation industry:

An anticipated transaction may be notified when

a) the undertakings concerned have a bona fide intention to proceed with the anticipated transaction;

b) details of the anticipated transaction are available; and

c) the anticipated transaction has been made public by any party or may be made public by the Malaysian Aviation Commission through the publication of a summary of the application.

Transactions that have already been completed may be notified at any time. The undertakings concerned are encouraged to make a notification to the Malaysian Aviation Commission as soon as possible after the merger is completed.

Communications industry:

The Malaysian Communications and Multimedia Commission (MCMC) recommends submitting a transaction for assessment before closing. MCMC accepts notifications of anticipated transactions provided that the proposed transaction has been publicly announced, and the parties have a bona fide intention to proceed with the transaction. If parties to the proposed transaction do not meet the aforementioned requirement, and accordingly where there is a level of confidentiality surrounding the proposed transaction, parties are encouraged to consider whether their transaction is appropriate for confidential assessment.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Malaysia does not have a general merger control regime. Instead, there are sector-specific notification regimes for the aviation and communications industries.

Aviation industry:

The Aviation Commission Act prohibits mergers which have resulted, or can be expected to result, in a substantial lessening of competition in any aviation service market.

Notification is voluntary and any transaction falling within the ambit of the Aviation Commission Act may be notified. The Malaysian Aviation Commission (MAVCOM) has indicated that it is more likely to enquire or initiate an investigation into a transaction if one of the following thresholds is met. The thresholds provide an indication of whether the Aviation Commission Act is infringed:

  • the combined turnover of the undertakings concerned was at least MYR 50,000,000 in Malaysia in the last financial year; or
  • the combined global turnover of the undertakings concerned was at least MYR 500,000,000 in the last financial year.

In any case where the above turnover thresholds are not met, MAVCOM still has the power to investigate a transaction where there is reason to suspect that it has resulted in, or may be expected to result in, a substantial lessening of competition in any aviation service market.

Communications industry:

Notification is voluntary and any transaction falling within the ambit of the Communications and Multimedia Act may be notified. Please see Section 1.1.1 above. The Malaysian Communications and Multimedia Commission (MCMC) has issued guidelines on when notification is advisable. The guidance provides an indication of whether the Communications and Multimedia Act is infringed:

Horizontal Transaction Threshold

  • For a proposed transaction, at least one of the undertakings concerned is a licensee in a dominant position, or the transaction would result in the proposed concentration obtaining a dominant position.
  • For a completed transaction, the concentration is a licensee in a dominant position.

Non-Horizontal Transaction Threshold

  • For a proposed transaction, at least one of the undertakings concerned is a licensee in a dominant position.
  • For a completed transaction, the concentration is a licensee in a dominant position.

Even if none of the above conditions are present, the MCMC considers that a transaction may still be suitable for notification and assessment in the following circumstances:

  • If one or both of the undertakings concerned is/are a licensee which is subject to an ongoing investigation by the MCMC; or
  • If there is significant cross shareholding between the undertakings concerned of 40% or more.

Please note that the MCMC only has jurisdiction if at least one of the undertakings concerned is a license holder under the Communications and Multimedia Act 1998. Please refer to Section 1.1.1 above.

2.3.2 For each threshold, can the threshold be triggered by only one undertaking having local turnover?

Aviation industry: Yes, one party having local turnover can trigger the thresholds.

Communications industry: Yes, one party having local turnover can trigger.

2.3.3 For each threshold, can the threshold be triggered without any undertaking having local turnover?

Aviation industry:  Yes, the Malaysian Aviation Commission’s indicative thresholds can be met without any party having turnover in Malaysia.  The Aviation Commission Act applies to transactions that may result in a substantial lessening of competition within any aviation service market in Malaysia.

Communications industry: No, thresholds can only be triggered if at least one party to the transaction or the merged entity is a license holder under the Communications and Multimedia Act, which means at least one of the undertakings would have turnover in Malaysia.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Aviation industry: Yes, where the indicative turnover thresholds are not met, the Malaysian Aviation Commission still has the power to investigate an anticipated transaction or a transaction where there is reason to suspect that it has resulted in, or may be expected to result in, a substantial lessening of competition in any aviation service market.

Communications industry: Yes, even if the thresholds for horizontal and non-horizontal transactions are not met, the Malaysian Communications and Multimedia Commission (MCMC) considers a transaction may still be suitable for notification and assessment (a) if one or both parties to the transaction is/are a licensee which is subject to an ongoing investigation by MCMC in respect of any conduct that is prohibited under the Communications and Multimedia Act; or (b) if there is significant cross shareholding between the parties to a transaction of 40% or more.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are sector-specific notification regimes for the aviation and communications industries. See Section 2.3.1 above.

2.4.2 Are any such schemes mandatory or voluntary?

Aviation industry: Filing is voluntary.

Communications industry: Filing is voluntary.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Aviation industry: No.

Communications industry: No.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

Aviation industry:

There is no definition of turnover given in the Malaysian Aviation Commission’s guidelines.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

Aviation industry:

There is no definition of turnover given in the Malaysian Aviation Commission’s guidelines. However, general guidance is available in the Malaysian Aviation Commission’s Guidelines on Notification and Application Procedure for an Anticipated Merger or a Merger which can be found on:

https://www.mavcom.my/wp-content/uploads/2018/04/Guidelines-on-Notification-and-Application-Procedure-for-an-Anticipated-Merger-or-a-Merger.pdf

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

Aviation industry: The financial year preceding the transaction.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Aviation industry: The Malaysian Aviation Commission does not provide guidance on adjustments.

Communications industry: Thresholds are based on market share only. The Malaysian Communications and Multimedia Commission does not provide guidance on adjustments. 

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The undertakings whose turnover is taken into account?

See Section 2.1.1 above.

The guidance does not provide further details on which affiliated companies’ turnover should be included. Including relevant turnover of all companies consolidated in the same group as the parties to the transaction is likely to be required by the Malaysian Aviation Commission. In any event, the thresholds are indicative, notification is voluntary, and the Malaysian Aviation Commission can open an investigation whether or not an infringement of the Aviation Commission Act has occurred.

3.3.2 Shall the turnover of the existing seller be included in the target's group turnover?

Aviation industry: In computing the turnover of “merger parties”, the Malaysian Aviation Commission’s Guidelines on Substantive Assessment of Mergers define merger parties as the acquirer and the target. This definition is, however, non-exhaustive and generally refers to a party involved in a transaction. Thus, if interpreted broadly, the definition may include the seller but most likely it excludes the seller.

Communications industry: No guidance from the Malaysian Communications and Multimedia Commission on this issue, but most likely not. The threshold in the communications industry is a market share test. If the seller will no longer control the target, the seller’s market share is not likely to be included in the threshold analysis.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

Aviation industry: The guidance available refers to the combined turnover of the merger parties in Malaysia and the combined worldwide turnover of the merger parties in the financial year preceding the transaction. The guidance does not provide further details on which turnover should be treated as “Malaysian”.   A conservative approach would be to treat any turnover generated in Malaysia, or paid by Malaysian counterparties, as Malaysian turnover. In any event, the thresholds are indicative, notification is voluntary, and the Malaysian Aviation Commission can open an investigation whether an infringement of the Aviation Commission Act has occurred.

Communications industry: Not relevant. Thresholds are based on market share.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Communications industry:

Thresholds are based on market share only. Absent alternative guidance from the Malaysian Communications and Multimedia Commission, market shares of all companies under the control of the undertakings concerned or controlled by the same parents, should be allocated to the undertakings concerned for the purpose of calculating the thresholds. If the seller will no longer control the target, the seller’s market share is not likely to be included in the threshold analysis.

Guidance on dominance and market share can be found in the Malaysian Communications and Multimedia Commission’s Merger Guidelines on:

https://www.mcmc.gov.my/skmmgovmy/media/General/pdf/Guidelines-on-Merger-and-Acquisitions_1.pdf

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Aviation industry: No.

Communications industry: No.

3.7.2 Does any exemptions apply?

Not applicable.

3.8 Currency conversion

3.8.1 The exchange rate applied and applicable exchange rate date for conversion of the value of turnover and assets of undertakings in other jurisdictions?

There is no rule stipulating a date that determines the exchange rate.

It is suggested to use the Bank Negara Malaysia’s (Malaysian Central Bank) average of daily 12:00 middle exchange rates for the 12-month period corresponding to the undertaking’s financial year.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

Aviation industry:

Any of the undertakings concerned may notify the Malaysian Aviation Commission.

Communications industry:

An application for assessment should be made by the following parties:

(a) for a proposed transaction, the acquiring party;

(b) for a completed transaction, the concentration or the entity that has acquired control.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

Aviation industry: No. 

Communications industry: No.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable. 

1.2.3 What are the sanctions for not filing a notifiable transaction?

There is no fine for failure to file or “gun-jump”. For both the aviation and communication industries, notification is voluntary so fines can only be imposed when a transaction that has been implemented is found to substantially lessen competition in the relevant market.

All parties to the transaction which substantially lessens competition are liable to fines.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Yes, see Section 2.2.1 of the Merger Screening Schedule.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

Aviation industry: The Malaysian Aviation Commission (MAVCOM) has a general authority to impose fees for “services rendered by the Commission” and although there is no established fee schedule as yet, MAVCOM’s FAQs indicate that fees will be prescribed in the future.

Communications industry: There are currently no fees imposed for voluntary notifications. However, the Minister in charge of telecommunications may, on the recommendation of the Malaysian Communications and Multimedia Commission, make further regulations. This may extend to the imposition of fees.

1.4.2 When must the filing fee must be paid?

Not applicable.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

Aviation industry: If the Malaysian Aviation Commission (MAVCOM) finds that a transaction is within the meaning of the Aviation Commission Act, MAVCOM will publish a summary of the application in the manner that it sees fit for the purpose of public consultation. Any person may submit feedback within 30 days from the date of publication of the summary of application or any other period as may be determined by MAVCOM.

Communications industry: Following receipt of application, the Malaysian Communications and Multimedia Commission (MCMC) can request for information from the applicants or third parties which would assist MCMC’s assessment of the transaction.

Such information received will be made available to the public. However, the MCMC will not publish any information, or any part of any information disclosed to it, if the publication would disclose any confidential information or would prejudice the fair trial of a person or involve the unreasonable disclosure of personal information of any individual (including a deceased individual). 

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

See Section 1.5.1 above. 

1.5.3 Will third parties be able to review the notification?

Aviation industry: Any person may submit feedback within 30 days from the date of publication of the summary of application or any other period as may be determined by the Malaysian Aviation Commission.

Communications industry: The Malaysian Communications and Multimedia Commission (MCMC) may consult third parties in respect of any part of an application submitted to it for assessment which is why applicants must provide the MCMC with a public version of any document submitted to the MCMC (which can be used in consultations and which can be disclosed to third parties if necessary).

The MCMC’s assessment of the competitive effect of the transaction would involve public consultation with suppliers, competitors and customers. However, the MCMC will not consult third parties in respect of a confidential assessment and will not make an announcement in respect of conducting an assessment or its final decision.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

Aviation industry: No. 

Communications industry: No. 

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

Aviation industry:

There are 2 phases for assessment.

During Phase I, the Malaysian Aviation Commission (MAVCOM) will evaluate the possible competitive effects of the transaction. If MAVCOM, upon the completion of the Phase I investigation, finds that a transaction does not raise any competition concern, MAVCOM will:

1. prepare a proposed decision and give notice of its proposed decision to the applicant;
2. provide an opportunity to the applicant, a merger party or any other relevant person to peruse the proposed decision prior to its publication for the purpose of determining whether there is any confidential information contained in the proposed decision;
3. publish its proposed decision in a manner that it sees fit for the purpose of public consultation.

Upon considering any feedback received through the public consultation, MAVCOM may:

1. proceed to make its final decision of non-infringement; or
2. proceed with a Phase II investigation, if MAVCOM finds that the transaction raises competition concerns.

In the event MAVCOM, during the Phase I investigation, finds that a transaction raises competition concerns, MAVCOM will inform the applicant that it will proceed to the Phase II investigation of the application. The applicant may be required to submit detailed information regarding the businesses of the merger parties in the relevant aviation service market within the period determined by MAVCOM. The submission of the detailed information by the applicant shall be in the form and manner determined by MAVCOM.

Upon the completion of the Phase II investigation, MAVCOM will:

1. prepare a proposed decision and give notice of its proposed decision to the applicant;
2. provide an opportunity to the applicant, a merger party or any other relevant person to peruse the proposed decision prior to its publication for the purpose of determining whether there is any confidential information contained in the proposed decision;
3. publish its proposed decision in a manner that it sees fit for the purpose of public consultation; and
4. if the proposed decision contains a finding that an anticipated transaction will infringe or a transaction has infringed the prohibition in the Malaysian Aviation Commission Act 2015, the applicant will be given an opportunity to make a written representation to MAVCOM pertaining to the proposed decision within a period determined by MAVCOM.

MAVCOM will give due consideration to any feedback received through the public consultation and in the case of a proposed infringement decision, any written representation by the applicant, before making its final decision.

MAVCOM will generally only consider remedies in Phase II.

Communications industry:

The Malaysian Communications and Multimedia Commission (MCMC)’s review is divided into 3 phases:

The MCMC will commence the assessment process after receiving a valid Form 1 application.

Preliminary Review: During the preliminary review, the MCMC determines whether the transaction is deemed a transaction within the definitions set out in the Merger Guidelines, and if the transaction meets the applicable thresholds, or any other grounds exist to justify reviewing the transaction.

Phase I: The MCMC undertakes an investigation of whether the transaction has the purpose of or has or may have the effect of substantially lessening competition in a communications market. During the Phase I investigation, the MCMC will assess the purpose or effect of the transaction on the basis of the information obtained by the MCMC from the applicant or from third parties. The MCMC may also hold consultations with the applicant or third parties for this purpose. Following the Phase I investigation, the MCMC will issue a notice of no objection or a notice informing the applicant that Phase II assessment is necessary if the MCMC is unable to determine the effect or purpose of the transaction on the basis of the information obtained through Phase I assessment process.

Phase II: The parties must submit a more detailed “Form 2” application upon being notified of referral to Phase II. The MCMC undertakes a detailed review of the transaction and requires more detailed information be provided by the parties. If the MCMC comes to the conclusion that it is likely to issue an unfavourable decision, the MCMC will issue the applicant with a “Statement of Issues” setting out the MCMC’s preliminary findings and any concerns identified and allowing the applicant to respond. The MCMC then either clears the transaction without objection or rejects the transaction.

There is no provision in the Merger Guidelines or the Communications and Multimedia Act for accepting remedies from the parties.

However, on making an unfavourable decision, the MCMC will consider enforcement options and remedies available to it. The remedies available to the MCMC, on making an unfavourable decision, include directing licensees to cease conduct, seeking injunctive relief, and the application of financial and other penalties.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Aviation industry: No. 

Communications industry: No.

2.2.3 Are there any sanctions for not complying with the deadlines for each Phase or as set by the local authorities?

Aviation industry / Communications industry: No fine or sanction for not filing within deadlines. Notification is voluntary so fines can only be imposed when a transaction is implemented which is found to substantially lessen competition. All parties to a contract which substantially lessens competition are liable to fines. 

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Aviation industry:

The duration of the assessment of an application will be determined on a case by case basis. Determining factors include the complexity of the issues and the timeliness and the completeness of the information provided by the parties.

Communications industry:

The Malaysian Communications and Multimedia Commission’s (MCMC) indicative timelines for merger reviews are non-binding but it targets meeting the following review periods:

Preliminary Review: 10 working days from the date of receipt of application.

Phase I: 30 working days from the date the MCMC notifies applicants of receipt of a valid Form 1 application.

Phase II: 130 working days from receipt of a valid Form 2 application (10 working days for confirmation of completeness, and 120 working day for Phase 2 review period). NOTE: the above timelines are indicative only and may be extended by the MCMC at its sole discretion for any reason.

Maximum review period: approximately 170 working days, excluding extensions determined by the MCMC and time for the parties to prepare a Form 2 application if required.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

Aviation industry: There is no guidance on this from the Malaysian Aviation Commission.

Communications industry: The Malaysian Communications and Multimedia Commission (MCMC) may suspend the investigation of a transaction if an applicant has made excessive claims that information is confidential or commercially sensitive. The MCMC may refuse to recommence the assessment process until the applicant resubmits an appropriate public version.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Not applicable.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

Aviation industry: The Malaysian Aviation Commission has a Notification and Application Form.

Please see: https://www.mavcom.my/en/resources/forms/

Communications industry: The Malaysian Communications and Multimedia Commission has notification forms namely Form 1 and Form 2, which are attached as Annexures 1 and 2 to the Merger Guidelines.

Please see: https://www.mcmc.gov.my/skmmgovmy/media/General/pdf/Guidelines-on-Merger-and-Acquisitions.pdf

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Aviation industry:

(a) details of the parties to the transaction;

(b) information on the transaction, including description of the turnover of the undertakings concerned, structure of the merger and change on the ownership structure of the concentration;

(c) description of the relevant aviation service market, including the relevant service market, geographic market and temporal market where applicable;

(d) competitive effects of the transaction including unilateral and coordinated effects of the transaction, barriers to entry, and countervailing buyer power;

(e) economic efficiencies (if any) including description of significant economic efficiencies and nature of the economic efficiencies; and

(f) social benefits (if any) including description of significant social benefits and the nature of the social benefits.

Communications industry:

(a) description of the proposed conduct and any documents detailing terms of such conduct;

(b) markets that the conduct is likely to affect;

(c) market characteristic;

(d) the time frame for which authorisation is sought;

(e) benefits of the conduct from the perspective of national interest;

(f) who is likely to benefit from the conduct;

(g) how are the benefits distributed; and

(h) how the conduct has been framed to minimise anticompetitive effect.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Aviation industry: The Malaysian Aviation Commission does not provide such requirement.

Communications industry: Applications submitted to the Malaysian Communications and Multimedia Commission (MCMC) (including supporting documentation, information provided by way of an informal request or a request made pursuant to the MCMC’s information gathering powers, and any additional public version of any such document) must be submitted in (a) 1 original hard copy; and (b) 1 soft copy in Microsoft Format, provided on a USB key.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

Aviation industry / Communications industry: All notifications can be made in Malay and English. Documents prepared in languages other than Malay or English should be submitted with convenient translations of the relevant sections. The authorities may require complete translations of supporting documents.

3.4.2 Does translations have to be certified/legalized and apostilled?

No.

This content was delivered
and last updated 24-02-2021 by
Yon See Ting, Partner
Jane Guan, Partner
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