Firms: Jones Day (Sydney) (SAP, globally); Herbert Smith Freehills (Ariba)
Deal: Acquisition of Ariba by global business software company SAP.
Value: US$4.5 billion
Key players: Nick Taylor led for Jones Day
Deal significance: Last week, competition authorities in the US and UK followed the ACCC's decision, and previous decisions in Austria and Brazil, to clear the acquisition. The ACCC's decision to clear the deal states that "the industry players and competitive dynamics in the markets identified are largely global, but the competition assessment was limited to effects on Australian consumers." Although the ACCC is careful to correctly identify its field of responsibility, from a practical perspective in internationally traded industries, assessing the effect on Australian consumers involves the same or very closely related judgments to those being made in other jurisdictions.
Nick Taylor of Jones Day who represented SAP in Australia says that “working on multi-jurisdictional deals of this nature is particularly interesting from a substance and process viewpoint.”
"From the parties’ perspective, the terms upon which confidentiality over business secrets is granted should carefully protect the scope of the disclosure but there can be considerable advantages of facilitating dialogue between competition agencies. Where the agencies can converse with each other about competitive effects in global markets, they are very likely to reach common views and the task of answering a single, coherent regulatory view of the world is obviously a lot simpler and more efficient than having to address multiple and potentially inconsistent regulatory concerns."
Taylor concluded to say "to some extent timing can be negotiated with the regulators but if you try and manage the process too tightly it becomes like a drawn out game of chess with each move taking 24 hours due to the time-zone differences. If the competition process is allowed to grind down to that pace, it will certainly not meet the time frame required by the corporate deal."