New Zealand Acts

COMMERCE ACT 1986 - SECT 47A

47A Declaration relating to acquisition by overseas person

1 The Commission may apply to the High Court for a declaration under this section if an overseas person acquires, whether directly or indirectly, a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares.

2 The High Court may make a declaration that it is satisfied that—

a) the overseas person has acquired a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares; and

b) the acquisition of that controlling interest has, or is likely to have, the effect of substantially lessening competition in a market in New Zealand.

3 A declaration may not be made in respect of an acquisition if—

a) the application for the declaration is made more than 12 months after the date of the acquisition; or

b) the Commission has given a clearance, or granted an authorisation, under Part 5 in respect of the acquisition (see section 69 ).

4 Nothing in this section limits the Commission's functions or powers under any other provision of this Act.

5 In this section and in sections 47B to 47D ,—  
"controlling interest" means, in the context of an overseas person having a controlling interest in a New Zealand body corporate, that the overseas person—  

a) controls the composition of the board of the body corporate; or

b) is in a position to exercise, or control the exercise of, more than 20% of the maximum number of votes that can be exercised at a meeting of the body corporate; or

c) holds more than 20% of the issued shares of the body corporate, other than shares that carry no right to participate beyond an entitlement to a specified amount in a distribution of either profits or capital; or

d) is entitled to receive more than 20% of every dividend paid on shares issued by the body corporate, other than shares that carry no right to participate beyond an entitlement to a specified amount in a distribution of either profits or capital; or

e) is the holding company (as defined in section 5(2) of the Companies Act 1993 ) of the body corporate; or

f) holds assets in circumstances where the holding of those assets results in the overseas person having effective control of the body corporate

"New Zealand body corporate" means a body corporate (whether incorporated overseas or in New Zealand) that carries on business in New Zealand  
"overseas person" means a person, whether a body corporate or otherwise, that is neither resident nor carrying on business in New Zealand.  

History: Section 47A: inserted, on 15 August 2017, by section 11 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).