Month: September 2020

Bribery and Money-laundering Risk Management in M&A

As government agencies and regulators around the world are strengthening their enforcement efforts (having unearthed major bribery, corruption and money laundering related lapses by various corporates in the recent years), corporate activities have come under increased regulatory scrutiny. A target’s historical and existing anti-money laundering (AML) or anti-bribery, anti-corruption (ABAC) violations and resultant liabilities typically become the acquirer’s responsibility post-closing. This can have far-reaching legal, business and reputational consequences on the acquirer and in an extreme case, could result in an acquisition being a failure. As a result of this, acquirers have to be cognizant of not only any post-closing transgressions but also any pre-closing ones that they know, or ought to have known. The approach of a hurriedly-conducted limited due diligence with heavy reliance on warranties alone is therefore a risky one.
This note is divided into four parts – the first part provides a general overview of the key legislations. The second part highlights certain factors such as the target’s jurisdiction, sector, local laws and other cultural and geographical issues that typically influence such AML and ABAC issues. The third part outlines safeguards that are customarily adopted by the acquirers and the last part proposes certain measures that may be considered and implemented for effective risk-management by the acquirers.

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One year of the CCI’s ‘Green Channel’ route for deemed approval of combinations

The Competition Commission of India (the “CCI”) recently commemorated the completion of the first year of the ‘Green Channel’ approval route for combination filings in India, by way of which, combinations which meet certain criteria are deemed to be approved upon filing a valid short form notification (Form-I) with the CCI. This unique approval route was introduced by the CCI with effect from 15 August 2019, for facilitating speedy clearance of transactions, and balancing the ease of doing business in India with appropriate regulatory oversight for such combinations. Since its introduction, almost one-fifth of the combinations notified to the CCI have availed of this route.
This note analyses certain issues relating to the implementation of this route, some of which have subsequently been addressed by the guidance issued by the CCI through its updated ‘Notes to Form-I’. While some issues remain to be clarified, it is hoped that going forward, these will be resolved through CCI’s further guidance and decisional practice, and facilitate a wider and more certain use of the deemed approval route.

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