GLA & Company Authors Kuwait Merger Control Practice Guide for Chambers & Partners
GLA & Company is proud to continue its contribution in authoring the Kuwait Chapter of the Merger Control Global Practice Guide, published by Chambers & Partners. The development of the laws and regulations in Kuwait on competition have resulted in a tremendous increase in activity in merger, or economic concentration, filings in the State.
Companies and International Law Firms are encouraged to read our guides, which can be accessed here. Below is a summary of the rules governing merger control in Kuwait along with some best practices to keep in mind.
In Kuwait, issues of merger control are governed by Law No 72 of 2020, which came into force on 1 November 2020, and its regulations, ratified by the Kuwait Competition Protection Agency (“Kuwait CPA”) under Resolutions No 14 of 2021, No 26 of 2021, and No 25 of 2022 (Law No 72 of 2020 and its regulations are together referred to as the “Kuwait Competition Law”). The Kuwait Competition Law is without prejudice to the international treaties and agreements in force in the State of Kuwait, meaning that such treaties and agreements with the Kuwaiti government supersede any provisions that would otherwise apply pursuant to the Kuwait Competition Law.
The Kuwait Competition Law requires submission of an application to the Kuwait CPA by persons involved in economic concentrations within at least 60 days from the date of the contract or agreement regarding the transaction, where the economic concentration meets certain thresholds established by the Kuwait CPA. The Kuwait Competition Law provides relatively conservative thresholds for determining whether an application is required, as follows:
- where the parties to the concentration achieve annual sales in Kuwait exceeding KWD 500,000, according to the audited financial statements of the last fiscal year before the concentration;
- where the parties to the concentration collectively achieve aggregate annual sales in Kuwait exceeding KWD 750,000, according to the audited financial statements of the last fiscal year before the concentration; and
- where the value of the registered assets of the parties to the concentration in Kuwait exceeds the value of KWD 2.25 million, according to the audited financial statements of the last fiscal year before the concentration.
The application must be submitted to the Kuwait CPA in accordance with the required form and the requirements under the Kuwait Competition Law, and must be approved by the Kuwait CPA before the economic concentration may be lawfully implemented. The Head of the Mergers and Acquisitions Department at Kuwait CPA, Shahad AlSaqabi, has played a key role in the development of the Kuwait CPA and the enforcement of the Kuwait Competition Law. Our lawyers at GLA & Company have worked closely with the regulators to learn best practices and support efficient processing of applications.
While many transactions are subject to filing, the Kuwait Competition Law exempts certain activities from being deemed economic concentrations, as follows:
- banks, insurance companies, and financial institutions whose activities include trading in securities are exempt, provided they do not exercise the substantive voting rights conferred by such securities – in order to be exempt, the security must generally be disposed of within one year from the date of acquisition;
- acquisitions resulting from insolvencies, defaults, debt restructuring, compositions with creditors, or similar transactions are exempt; and
- restructuring within the same group of companies is exempt.
Furthermore, the following cases shall not be deemed economic concentrations.
- In cases of acquisition of control as a result of insolvency, default, debt rescheduling, settlements with creditors, or analogous proceedings.
- What’s the difference between the Bullet points in green regarding the Exemptions, and those bullet points?
If the Kuwait CPA becomes aware of any steps taken toward completing a transaction before obtaining the necessary clearance from the Kuwait CPA, penalties may be imposed, which can be anywhere from 1% to 10% of the previous year’s annual sales of the concentration parties. The Kuwait CPA has the authority to independently initiate research, investigations, evidence collection, and inquiries in accordance with the provisions of the Kuwait Competition Law. Moreover, any person may report any agreements, acts, or actions that violate the Kuwait Competition Law. GLA & Company works closely with clients who find themselves involved in such proceedings, and represents them before the Kuwait CPA on filings, pre-notification meetings, and disciplinary procedures.
The Kuwait CPA has historically remained dormant and relatively inactive in the market compared with some of its sister jurisdictions in the GCC. However, the enactment of the recent Kuwait Competition Law and increase in activities demonstrates Kuwait’s dedication to the enforcement of the principle of freedom of competition in the State.