Merger Control 2022 Comparisons

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 and No 26 of 2021 (Law No 72 of 2020 and its regulations are together referred to as the “Kuwait Competition Law”). 

The Kuwait Competition Law repealed its predecessor, Law No 10 of 2007, expanding on the governing rules that impact competition in the State of Kuwait. 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. 

Other than the Kuwait Competition Law, the following apply:

• The executive by-laws of the Kuwait Capital Markets Authority (“Kuwait CMA”) include certain disclosure requirements and other restrictions impacting transactions that are also subject to the Kuwait Competition Law. The Kuwait CMA governs companies that (i) are listed on the Kuwait stock exchange, the Boursa, or (ii) carry licences, such as investing, governed by the Kuwait CMA.
• The Central Bank of Kuwait (CBK) governs certain activities of financial institutions in Kuwait and carries its own set of regulations that must be complied with where the transaction concerns a bank or other financial institution governed by the CBK.

The Kuwait CPA is an independent body established pursuant to the Kuwait Competition Law and is supervised by the Kuwait Minister of Commerce and Industry. The Kuwait CPA is the sole body charged with reviewing and determining applications to approve economic concentrations or some anti-competitive practices, and with enforcing 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, or drafting, of the contract or agreement regarding the transaction, where the economic concentration meets certain thresholds established by the Kuwait CPA. 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 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 KWD500,000, 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 exceeding KWD750,000, according to the audited financial statements of the last fiscal year before the concentration;
• where the value of the registered assets of the parties to the concentration in Kuwait exceeds the value of KWD2.25 million, according to the audited financial statements of the last fiscal year before the concentration.

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;
• restructurings within the same group of companies are exempt.

It is important to note that the persons desiring to perform an economic concentration, where an application is required, are forbidden under the Kuwait Competition Law from performing any actions or procedures to complete the concentration operations prior to the issuance of the Kuwait CPA’s determination.

Any person may report any agreements, acts or actions that violate the Kuwait Competition Law.

The Kuwait Competition Law established a Disciplinary Board, tasked with deciding on disciplinary actions referred to it by the Kuwait CPA in relation to violations of the Kuwait Competition Law, and complaints filed by various stakeholders. The Disciplinary Board may impose financial penalties of no more than 10% of the total revenues earned by the parties to the economic concentration during the previous fiscal year in the event of failure to submit the application for concentration, or for providing misleading or incorrect information on an application.

The following types of transaction are deemed an economic concentration subject to the Kuwait Competition Law:

• the merger of two or more persons by amalgamation or by combination, or merger of parts of persons, resulting in acquiring control or acquiring more control (see 2.4 Definition of “Control”);
• the acquisition, by one or more persons, or direct or indirect control over entire or parts of another person or persons, whether by acquisition of any assets, property rights or usufructs, by purchase of shares or liabilities, or by any other means; or
• the joint venture of two or more persons, resulting in performing, on a lasting basis, an autonomous economic or commercial activity, regardless of its legal form or the activity to be practised.

Article 1 of the Kuwait Competition Law defines “control” as “the legal or contractual relationship which, either separately or in combination, results in exercising decisive influence.”

The Kuwait Competition Law, pursuant to Article 3 thereof, applies to acts committed inside or outside the State of Kuwait whenever such acts prevent, restrict, or distort free competition in the State of Kuwait.

The current jurisdictional thresholds are as follows, in accordance with Resolution No 26 of 2021:

• where the parties to the concentration achieve annual sales in Kuwait exceeding KWD500,000, 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 exceeding KWD750,000, according to the audited financial statements of the last fiscal year before the concentration,

where the value of the registered assets of the parties to the concentration in Kuwait exceeds the value of KWD2.25 million, according to the audited financial statements of the last fiscal year before the concentration.

The calculation of the thresholds appears to be based on the audited financial statements of the persons involved in the economic concentration, which would generally be the transacting participants of the transaction. The Kuwait Competition Law does not specifically address the issue of currency conversion, or whether to rely on the book or fair market value of the assets being appraised. In the authors’ experience, clients have provided the value of assets as presented in the audited financial statements submitted to the Kuwait CPA. 

Unfortunately, many of these issues are not entirely clear in the Kuwait Competition Law. In the authors’ experience, the Kuwait CPA has requested the audited financial statements of the local Kuwaiti entity(ies) involved in a transaction, but has not committed to stating whether it relies only on the audited financial statements of the Kuwaiti entities involved (often indirectly) in an economic concentration. Thus, the authors’ advice to clients has been to err on the side of caution when determining whether the thresholds issued by the Kuwait CPA prompt a filing requirement.

In short, foreign-to-foreign transactions are subject to merger control and other measures – as previously mentioned, the Kuwait Competition Law applies to acts committed inside or outside the State of Kuwait whenever such acts prevent, restrict, or distort free competition in the State of Kuwait.

The Kuwait Competition Law does not have a market share threshold; however, disclosure of estimated market share is part of the notice application to the Kuwait CPA.

Joint ventures are subject to merger control. A joint venture of two or more persons, resulting in performing, on a lasting basis, an autonomous economic or commercial activity, regardless of its legal form or the activity to be practised, is considered an economic concentration. There are no other special rules provided for in the Kuwait Competition Law pertaining to joint ventures.

The Kuwait Competition Law confers the capacity of law enforcement officers upon the Kuwait CPA’s employees. These officers are entitled to enter persons’ premises and workplaces to investigate violations of the Kuwait Competition Law. They are entitled to access records, books and documents, to obtain information, data, documents, access to files (physical or electronic) held by a government or non-governmental body, and may seek the assistance of police officers when needed.

Implementation may not lawfully proceed before an approval is issued by the Kuwait CPA.

The Kuwait CPA is entitled to take corrective action for violations of the Kuwait Competition Law. Unfortunately, specific consequences for implementing a concentration before an approval from the Kuwait CPA, where an application is required, are not provided for in the Kuwait Competition Law. It is possible that the Kuwait CPA would order the unwinding of a transaction for failing to comply with the procedures stipulated in the Kuwait Competition Law.

Unfortunately, there is no reliable source of publicly available information on this issue.

While possible, these circumstances are not specifically provided for in the Kuwait Competition Law.

An application must be filed at least 60 days from the date or drafting of the contract or agreement regarding the transaction.

No binding agreement is required prior to notification; it is sufficient for parties to file on the basis of a less formal agreement such as a letter of intent, memorandum of understanding, or good faith intent by the parties to reach an agreement.

There are filing fees. Applications must be accompanied by receipt for payment of a fee of one tenth (0.1%) of the paid-up capital, or of the combined assets of the relevant persons in the State of Kuwait, whichever is less, provided that it is not more than KWD100,000.

Persons directly involved in the economic concentration are required to submit the application to the Kuwait CPA; typically, these are the parties to the agreement.

The application requires a considerable amount of information and detail on the entities involved in the transaction and the economics resulting therefrom. An application requires the following to be included to the extent available and appropriate:

• Asset appraiser report by an auditor approved by the Kuwait CMA.
• Memorandum of association, articles of association, commercial register and commercial licences of the parties to the economic concentration.
• Names of the board members of each of the parties to the concentration or their legal representatives.
• Financial statements for the last two fiscal years for all relevant persons in the economic concentration’s operation and their branches.
• Copy of the contract executed or in draft form, and any other documents of a public or private offering, and information on the number of shares or assets that will be acquired.
• A report containing the economic aspects of the proposed transaction, which must include the following.
1. Information about the concentration parties:
1. names of the parties of the concentration operation, memoranda of association, articles of association (if any), commercial licences and the commercial register;
2. activity of the parties of the concentration operation;
3. addresses, phone numbers and email addresses of the parties of the concentration operation;
4. name, title, copy of ID, phone number and email address of the liaison officer at the parties of the concentration;
5. capital;
6. the most important customers and their percentages in the market;
7. volume, value and percentage of sales in the market;
8. a description of competitors and their shares in the market.
2. Data of the concentration operation:
1. type of transaction (ie, merger, acquisition, or joint venture);
2. description of whether the transaction relates to all or some parties of the economic concentration;
3. a brief explanation for the economic and financial structure of the economic concentration;
4. the dates, proposed or estimated, of any important procedures aimed at the completion of the concentration operation;
5. the proposed ownership structure and the decisive influence post-completion;
6. relevant products of the economic concentration, its volume and percentage of sale;
7. relevant market and its volume;
8. products in which the applicants deal;
9. positive impacts of the transaction on the economy;
10. negative impacts of the transaction and the proposed procedures to mitigate such impacts;
11. markets affected by the transaction;
12. factors influencing access to the market;
13. nature of the distribution channels;
14. factors affecting price fixation during the past five years;
15. volume of available productive capacity and percentage of usage;
16. volume of demand for products and its structure;
17. alternative products;
18. concentration value in Kuwaiti dinars, provided that it shall include the purchase rate and the value of all relevant assets.
3. Ownership and decisive influence:
1. all persons who have a decisive influence on participants in the economic concentration, whether directly or indirectly, shall be determined and the nature of such influence and its methods shall be described;
2. all persons dealing in any affected market where participants in the concentration operation or any other person enjoy a decisive influence on that market, whether directly or indirectly – the nature and methods of such influence shall be described.

Typically, the Kuwait CPA will notify the applicants of additional information requested. Otherwise, failure to provide a complete application may result in a denial by the Kuwait CPA, or other corrective action the Kuwait CPA deems appropriate.

The Disciplinary Board may impose financial penalties of no more than 10% of the total revenues earned by the parties to the concentration during the previous fiscal year in the event that the application contains misleading or incorrect information.

There is no readily available reliable source of information to provide statistics on the application of penalties by the Kuwait CPA.

Once an application is submitted, the chairman of the Kuwait CPA must refer the application to the executive director of the Kuwait CPA within five days, plus any additional time in the event additional information is requested from the applicants. 

The executive director then has 90 days to study the application and prepare a report to the board of the Kuwait CPA. The board of the Kuwait CPA may extend this 90-day limitation upon request from the executive director of the Kuwait CPA. During this phase, the executive director:

• ensures that the fees paid are consistent with the requirements;
• may require additional documents, information or data deemed necessary for studying the application;
• notifies persons the executive director considers to be affected by the approval of the economic concentration application in order for them to submit any objections or documents they may have;
• publishes a summary of the economic concentration application on the website of the Kuwait CPA, and in the Official Gazette or two local daily Arabic newspapers;
• holds hearings with the applicants or others as appropriate; and
• seeks the help of any expert, local or international companies that are specialised in examination of the application, or obtains any information from third parties as appropriate.

In the event of any objection by a third party, the time to consider and decide on this does not count towards the 90-day limitation otherwise imposed on the executive director of the Kuwait CPA during his phase of review.

Following completion of the executive director’s review, a report will be issued to the chairman of the Kuwait CPA containing details of the application, a description of all facts and procedures taken with respect to the application, an evaluation of the application from both a legal and economic standpoint, and a recommendation. The chairman of the Kuwait CPA presents the application to the agency’s board, who will in turn decide on the application within 30 days from the date of the chairman’s presentation. The board’s decision will be as follows:

• approving the economic concentration application; or
• conditionally approving the economic concentration application; or
• rejecting the economic concentration application, provided that such a decision is justified.

Once a decision is rendered, the executive director must inform the stakeholder within 15 days of the date of the board’s decision. 

The total timeline for a decision to be rendered from the time an application is properly submitted is an estimated four months. The actual time, however, may vary depending on follow-up requests for additional information, requests for additional time by the executive director, or objections raised by third parties.

Pre-notification discussions with authorities can be engaged in. Any person who desires to engage in an economic concentration may apply for a meeting prior to submission of an application. There is no particular obligation of confidentiality provided for in the Kuwait Competition Law.

Requests for information are common and expected, depending on the extent of the application submitted. Requests will effectively suspend the time otherwise imposed on the Kuwait CPA to process an application.

There is no formal method for expediting or accelerating the procedure of review of an economic concentration application.

When considering an application, the Kuwait CPA considers the following standards:

• maintaining and encouraging effective competition amongst competitors in the market;
• enhancing the interests of consumers with respect to quality and price of the relevant products;
• encouraging through competition the reduction of costs, developing new products and facilitating the access of new competitors to the market.

The executive director, during his review, takes the following elements into consideration:

• Studying the products according to the following:
1. comparing the products subject to the transaction with other similar products in the market;
2. the availability of substitute products to consumers.
• Determining the possibility of competition within a relevant geographic area with the following standards in mind:
1. the ability of the consumer to move from one geographic area to another;
2. the ability of vendors to make changes based on the moving of purchasers between various geographic areas due to the relative change in the prices or other competitive factors;
3. barriers to entering the relevant market;
4. costs of moving between geographic areas;
5. customs and administrative restrictions at the local and foreign levels.
• The market share of the relevant persons.
• Revenues and assets of relevant persons.
• Actual or possible competitiveness in the relevant market.
• The extent of ease of entry into the relevant market.
• The possible influence on prices of relevant commodities or services.
• The barriers to entry affecting new or potential competitors.
• The possibility that a dominant position in the relevant market is created.
• The possible influence on creativity, innovation and technological efficiency.
• The extent of the impact on investment or export encouragement.
• The impact on consumers’ interests.

Unfortunately, at this stage the regulations do not provide much guidance on this issue. The Kuwait Competition Law provides that the relevant geographic area is the area where the products regarded as interchangeable are substituted. It further provides that the relevant products are all the products which are regarded as interchangeable or substitutable in terms of meeting the needs of the recipient of the service or the commodity.

Unfortunately, at this stage the regulations do not provide guidance on this issue. However, it is likely that case law would play a relatively small role in influencing the enforcement of the Kuwait Competition Law.

Please see the factors taken into consideration by the executive director detailed in 4.1 Substantive Test.

The Kuwait CPA considers the possible influence on economic efficiencies; however, the extent of such consideration is not apparent.

There are no formally approved additional considerations that the Kuwait CPA may take into account where such considerations fall outside the scope of application of the Kuwait Competition Law.

There are no other special rules provided for in the Kuwait Competition Law pertaining to joint ventures in particular.

The Kuwait CPA has the authority to take corrective actions for violations of the Kuwait Competition Law. At this time, the Kuwait Competition Law provides limited guidance on this issue.

The Kuwait CPA may, at any stage of the procedures taken against the violator and until a decision is issued by the Disciplinary Board or a final judgment, offer settlement or accept it according to the template prepared for this purpose with any person who committed one of the violations stipulated in the law for the payment of an amount that is not less than the dedicated minimum fine and shall not exceed the maximum fine.

The Kuwait CPA would determine the period during which the violator should fulfil the settlement conditions. Where the settlement is completed, the procedures taken against the violator expire.

A settlement request may also be submitted by the violator or his legal representative to the Kuwait CPA. The Kuwait CPA would examine the request and assess its value without affecting the rights of the one who is affected by the violation.

In order to offer or accept a settlement, the following conditions must be met:

• no decision must have been issued for the violation, unless a final judgment is issued for the violation where the violator appeals (in a timely manner) the decision of the Disciplinary Board; and
• the value of the settlement must not be less than half of, or greater than, the maximum penalty.

Unfortunately, there is no reliable source of publicly available information on this issue.

There is no formal initiation point for when parties may begin negotiating remedies with the authorities. As previously mentioned, the Kuwait CPA may propose its own remedy, but may impose remedies not agreed between the parties that it otherwise has the authority to impose.

Unfortunately, there is no reliable source of publicly available information on this issue.

Formal decisions permitting or prohibiting transactions are made publicly available – the decisions of the Kuwait CPA are generally published on the authority’s website.

Unfortunately, there is no reliable source of publicly available information on this issue.

Unfortunately, there is no reliable source of publicly available information on this issue. The Kuwait CPA, in the event it issues a conditional approval, will outline the conditions regarding this.

During the process of review by the Kuwait CPA, a summary of the application is published on the website of the Kuwait CPA, and in the Official Gazette or two local daily Arabic newspapers.

Every stakeholder is entitled to submit a justified objection to the Kuwait CPA against the economic concentration application within 15 days from the date of notice or publication. If an objection is filed, the applicant has 15 days from the date of notice of the objection to provide its statements and documents in reply to the objection. The review process, and timeline, is effectively paused from the time an objection is filed to the time a decision is reached by the Kuwait CPA on the matter.

During the process of review by the Kuwait CPA, a summary of the application is published on the website of the Kuwait CPA, and in the Official Gazette or two local daily Arabic newspapers.

The Kuwait CPA is also permitted to notify persons it considers to be affected by the approval of the economic concentration application. Those persons will have 15 days from the date of being notified, or the date of publication of the summary of the application, whichever is earlier, to lodge any objections they may have.

The applicant for economic concentration desiring that data included in the application and the attached documents be treated as confidential may mark the application as “Confidential”, and attach a statement in support of holding the application or its contents confidential. In these circumstances, the applicant should provide non-confidential summaries that provide a sufficient understanding of the content of the confidential data, provided that these are marked as “Not Confidential”.

The Kuwait CPA ultimately determines whether or to what extent to hold information contained in an application confidential in accordance with controls set by its board of directors.

There is no clear indication of the level or extent of co-operation between the Kuwait CPA and other jurisdictions; however, as mentioned in 1.1 Merger Control Legislation, the Kuwait Competition Law is subject to international treaties or agreements entered into by the State of Kuwait. Thus, to the extent a treaty provides for the co-operation by the State of Kuwait with other jurisdictions and to the extent relevant to the Kuwait Competition Law, those conditions will apply.

A final decision by the Kuwait CPA may be appealed to the judicial system in Kuwait by way of a formal writ of summons against the authority. There is a dedicated department within the judicial court system dedicated to complaints filed involving governmental authorities.

The timeline of a case filed against a governmental authority varies on a case-by-case basis, and may last over one year in the court system.

Assuming that a third party made a proper objection during the reviewing phase of an application, the decision made by the Kuwait CPA to such an objection may be appealed by that third party. However, it is highly unlikely that such an appeal would pause the review process.

Law No 72 of 2020, Resolution No 14 of 2021, and Resolution No 26 of 2021, which make up the Kuwait Competition Law, have all been enacted in the last couple of years. The authors expect the Kuwait CPA to issue additional amendments and regulations as it continues to grow and develop.

The Kuwait CPA does not regularly publish statistics of its enforcement activities. Unfortunately, there is no reliable source of readily available data on the statistics following the enactment of the Kuwait Competition Law in 2020. That being said, it is important to understand the level of authority granted to the Kuwait CPA, which includes the ability to unwind transactions or issue fines for violation of the Kuwait Competition Law.

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 demonstrates Kuwait’s dedication to the enforcement of the principle of freedom of competition in the State.

Given the age of the Kuwait Competition Law, it is unclear what the level of involvement of the Kuwait CPA will be; however, its conservative thresholds, published in 2021, in determining when an application is required for approval of an economic concentration – which is broadly defined to include any merger, any acquisition resulting in direct or indirect control of another, and any joint venture resulting in a lasting co-operation of an economic or commercial activity – result in a requirement for many cross-border deals to pay attention to the Kuwait CPA’s requirements and comply with the Kuwait Competition Law, regardless of whether or not the directly transacting entities are based outside the State.