On 26 April 2022, the Malaysia Competition Commission (‘MyCC’) issued a Consultation Paper on the Proposed Amendments to the Competition Act 2010 (Act 712) (‘Consultation Paper’) and a supplementary document, Salient Points of the Proposed Amendments to the Competition Act 2010 (Act 712) (‘Supplementary Document’).
 
In brief, the Consultation Paper and the Supplementary Document contain proposals by the MyCC to, among others, establish a merger control regime under the Competition Act 2010 (“CA 2010”).
 
Our article, “Merger Control: The Third Pillar of Malaysian Competition Law”, on the MyCC’s proposed merger control regime outlined in the Consultation Paper and the Supplementary Document can accessed here.
 
On 4 January 2024, The Star published a news article entitled “Merger control law on the horizon” which contains excerpts of an interview with En. Iskandar bin Ismail, the Chief Executive Officer of the MyCC.
 
Based on the Consultation Paper and the Supplementary Document the proposed amendments to the CA 2010 were initially targeted to be tabled in the Malaysian Parliament in October 2022. In his recent interview, En. Iskandar cited the Covid-19 outbreak and political changes as the reasons for the delay in amending the CA 2010.
 
The MyCC Chief Executive Officer indicated that the proposed amendments are “about 80% complete” and are targeted to be tabled in Parliament in June 2024.
 
En. Iskandar stated that the merger control regime will impact all enterprises that cross a certain threshold, which “could amount into the hundreds of millions.” However, he did not indicate the quantum or basis on which the threshold is to be determined, i.e. whether it would be based on turnover of the parties or the value of the merger or anticipated merger. No indication was given as to the extent to which market share would be a relevant criteria. Given that the primary objective of the proposed merger control regime is to prevent the consummation of mergers or anticipated mergers which would result in a substantial lessening of competition (“SLC”) in any market for goods or services, the market share of the parties to the merger would in appropriate circumstances be a crucial factor in determining the likelihood of an SLC occurring.
 
In the interview, the MyCC Chief Executive Officer did shed light on the types of decisions that the MyCC could make upon receipt of a merger notification, namely that the MyCC could decide to issue: 

Further, En. Iskandar confirmed that certain industries which have their own regulators, such as businesses in the telecommunications and multimedia sector, water sector, and the aviation sectors will not be subjected to the merger control regime under the CA 2010. This is consistent with the proposal as set out in the Consultation Paper and the Supplementary Document.
 
Comments
 
The Consultation Paper and the Supplementary Document have laid detailed groundwork for the proposed merger control regime to be introduced in Malaysia. Given the guarded statements made by the MyCC Chief Executive Officer during the interview, it remains to be seen how much of this groundwork will be included in the new merger control framework.
 
The MyCC had proposed in the Consultation Paper that the amendments to the CA 2010 relating to the merger control regime will come into effect within one year after the amendments have been passed by Parliament. It remains to be seen whether this proposed grace period will be maintained.
 
Whilst it is clear that the introduction of merger control in Malaysia looms closer on the horizon, key details and implementation time frames remain cloudy at this point.
 
Article by Angela Hii (Senior Associate) of the Competition Law Practice of Skrine.