Yes. Thailand reformed its competition law in 2017 with the introduction of the Trade Competition Act, B.E. 2560 (2017) ("TCA"), which contains an amended merger control regulation.

Corresponding subordinate legislation clarifying key definitions, criteria, and procedural rules for statutory merger filing requirements led to the full implementation and enforcement of the merger control regime in Thailand starting December 29, 2018.

However, if merger control regulations appear in sector-specific regulations (such as financial institutions, aviation, energy, insurance, telecommunications, etc.), the merger provisions in the TCA will not apply.

The Trade Competition Commission of Thailand ("TCCT") is the competition authority, which has the authority to issue subordinate regulations and guidelines and consider merger cases and complaints. The administrative office manages administrative work in support of the TCCT, including the acceptance of merger filing applications, forms, and supporting documents. 

No. There is no supranational agency in this regard.
 

A merger may be subject to either pre-merger approval or post-merger notification filing requirements under the TCA if the relevant criteria on market share and sale turnover prescribed under the subordinate regulations are met.

A “merger,” which is subject to merger filing requirements, is defined as any of the following transactions:

1. Merger among producers, sellers, producers and sellers, or service providers, resulting in one business remaining and the other business terminating, or a new business coming into existence;   
2. Acquisition of another business’ assets used in that business’ normal operations during the previous fiscal year in order to control its policy, business administration, direction, or management; or  
3. Acquisition of all or part of the stocks of the other business, whether directly or indirectly, in order to control policy, business administration, direction, or management.

Minority investments (i.e., acquisition of shares and assets below the statutory threshold) do not fall within the ambit of merger filing requirements.

The TCCT has interpreted the TCA and subordinate regulations as meaning that foreign-to-foreign transactions may trigger merger filing requirements in Thailand if the merging parties conduct any income-generating business activities in Thailand or sell products or services into the Thai market through their local subsidiaries or affiliates in the same corporate group under the principle of single economic entity and the relevant criteria on market share and sale turnover in Thailand are met. However, the rulings on foreign-to-foreign mergers are still at a developmental stage. Further consultation with local counsel and in-depth merger control analysis is recommended.

There are two merger filing regimes that set out different thresholds and criteria:

1. Pre-merger approval. Any merger that may result in a “monopoly” or “market dominance” position requires prior approval from the TCCT.
2. Post-merger notification. Any “merger resulting in substantial lessening of competition” must be reported to the TCCT within seven days from the date of the merger.

Key Definitions and Threshold

• Monopoly: When a sole business operator in a certain market, with a turnover of THB 1 billion or more, has the power to independently determine the prices and quantity of their products or services.
• Market Dominance:

1. When a business operator with a turnover of THB 1 billion or more in the previous year, in a certain market for products or services, acquires a market share of 50 percent or more; or
2. When the top three business operators in a certain market for products or services, acquire a market share totaling 75 percent or more in the previous year, with the exception of any business operator whose turnover in the past year was below THB 1 billion or whose market share in the past year was below 10 percent.

• Merger resulting in a substantial lessening of competition: A merger transaction in which the total turnover of any, or all, of the business operators to be merged in a certain market, is THB 1 billion or more, but which does not result in either a monopoly or a market dominance position.

Unless an exemption applies, it is mandatory to fulfil the merger filing duties.

For pre-merger approval, the merging parties need to seek approval before proceeding to the closing. For post-merger notification, the merging parties must submit the notification together with all required information and documents to the TCCT within seven days from the date of the merger (generally the closing date). 

No, there is no automatic waiting period. 

The corresponding subordinate regulations prescribe the application form for both pre-merger approval and post-merger notification. The forms are only in Thai and can be downloaded from the TCCT website at https://www.tcct.or.th/view/1/manual_form/TH-TH.

The fee for pre-merger approval is THB 250,000 per transaction. There is no statutory fee for the post-merger notification.

For pre-merger approval, the TCCT has 90 days (extendable for a further 15 days) to consider the application and make a determination.  For post-merger notification, the filing must be made within seven days after the merger occurs, and there will be no consideration but only acceptance by the TCCT.

For approval clearance, the TCCT will take into account a number of factors including impact on the relevant market, market concentration, barriers to market entry and expansion, effects on competition from non-coordinated and coordinated effects, commercial/business necessity, potential damage to the economy, and impact on consumer welfare.

For pre-merger approval, the TCCT can approve the merger, reject the merger, or approve it with conditions.

The wording of the TCA appears not to contemplate that business operators could proactively propose solutions to competition concerns that the TCCT may identify. So far, the most high-profile TCCT decision approving a merger seems to suggest that the conditions attached to the approval were solely determined and imposed by the TCCT, and not voluntarily offered by the merging parties. 

Please see the previous section. 

If a merger qualifies for a statutory exemption or does not reach the statutory threshold and is not subject to merger filing duties, the TCCT would not have the authority to challenge it. 

As noted above, such transactions appear not to be challengeable, and there has been no instance of the TCCT challenging a non-notifiable merger.

While enforcement is primarily complaint-driven, the TCCT has been increasingly active in adopting the relevant guidelines and enforcing the provisions on both antitrust/competition and merger control. There have been a number of cases of the TCCT imposing fines on merging parties that failed to notify their mergers. The TCCT has continued its market surveys and sector inquiries in order to build up its own database and monitor parties’ behavior and concentration in relevant markets.

Merging parties should conduct a merger control analysis of any prospective transactions—including foreign-to-foreign—that could possibly result in triggering merger filing requirements in Thailand. This should be carried out at least two months prior to the closing of the merger transaction.