SECTOR SPOTLIGHT www.acquisition-intl.com
Merger Control of Foreign-to-Foreign Transactions in Belarus
Company: Stepanovski, Papakul & Partners Names: Tatiana Ignatovskaya, Katsiaryna Semianiuk E-mail: info@spplaw.by Web: http://spplaw.by/en/ Address: Minsk | Belarus 16 Kuibyshev str. | 220029 Tel.: +375 (17) 209 44 83 Fax: +375 (17) 204 86 72 Photo: www.crttbuzzbin.com (The Buzz Bin)
Merger Control of Foreign-to-Foreign Transactions in Belarus The Belarusian merger control regime is set out in the Law of the Republic of Belarus “On Counteraction to Monopolistic Activity and Competition Development No. 94-Z of 12 December 2013” (the “Competition Law”) that came into force on July 01, 2014 and replaced the previous law. The Competition Law does not specially address foreign-to-foreign transactions. It provides that the Competition Law shall be applicable when economic concentration takes place outside the territory of the Republic of Belarus in relation to the business entities registered in the Republic of Belarus that includes transactions or other actions which have (or may have) an impact on competition, including mergers or acquisitions, transactions with shares etc. Direct foreign-to-foreign transactions with shares in relation to the Belarussian business entities fall into the scope of the Competition Law. However, the issue with the change of indirect control is not so straight forward. The Competition law has the following provisions that have not yet been commented by the antimonopoly authorities and tested in our practice. An antimonopoly authority exercises control over transactions that meets an established financial 74 Acquisition International October 2014
threshold and at the same time: • A business entity will have a possibility to influence on decision-making in the entity with a dominant position on the market as a result of such a transaction; • A business entity will get the right to dispose of more than 25% and or more than 50% of shares in a business entity. The current definition of a business entity does not specify the origin or place of business but includes all corporate bodies and entrepreneurs who carry out business activities or have legal capacity to do so. Until the moment a relevant guidance is provided by the authorities and practice is formed, each case requires an individual analysis. n