How Australia's 2026 Merger‑Control Reforms Affect Joint Ventures, Practical Steps for JV Parties

Last updated: 28 April 2026. This article is general guidance and does not constitute legal advice. Parties should obtain jurisdiction‑specific counsel before acting.

Australia replaced its decades‑old voluntary merger‑clearance system with a mandatory and suspensory merger‑control regime that took effect on 1 January 2026, with refinements to notification thresholds following on 1 April 2026. For deal teams negotiating joint ventures, the central compliance question under the new framework is immediate and consequential: does the proposed JV constitute a notifiable “acquisition” that must be filed with the Australian Competition and Consumer Commission (ACCC), and must the parties then wait for clearance before implementation? Understanding how joint ventures merger control Australia 2026 rules interact with common JV structures is now a threshold task for every transaction, because the consequences of getting the answer wrong include injunctions, penalties and forced divestiture.

This guide provides a step‑by‑step decision checklist, explains the ACCC notification thresholds and timelines, maps the regime onto equity JVs, contractual collaborations and minority‑stake investments, and supplies annotated sample clauses designed to manage regulatory risk from formation through to exit.

Does Your JV Trigger Mandatory ACCC Notification?

Under the mandatory merger notification 2026 regime, any “acquisition” that meets the prescribed thresholds must be notified to the ACCC before it is put into effect. A joint venture can constitute an acquisition where it results in one or more parties obtaining control, or the ability to materially influence the competitive conduct, of another entity or business. The critical first step for every JV is to run the following five‑point decision checklist.

Five‑Step Notification Decision Checklist

• Step 1, Identify the transaction type. Does the JV involve the creation of a new entity (newco), the acquisition of shares or assets in an existing entity, or a purely contractual arrangement? The ACCC treats the formation of a newco that will carry on business as an acquisition of shares in that entity by its shareholders.
• Step 2, Assess control. Will any party acquire sole or joint control of the JV entity, or the ability to exercise de facto control or material influence over its competitive conduct? Joint control, typically arising where two parties each hold 50 % or have equivalent veto rights, is caught.
• Step 3, Test the thresholds. Does the transaction meet the turnover or transaction‑value thresholds prescribed under the regime (discussed in detail below)? If neither limb is satisfied, mandatory notification is not triggered even if the arrangement involves a change of control.
• Step 4, Consider exemptions. Does the arrangement qualify for any carve‑out, for example, certain internal restructures or acquisitions in the ordinary course of a financial‑services business? JV‑specific exemptions are narrow, and most commercial JVs will not qualify.
• Step 5, Apply the suspensory rule. If Steps 1–3 are satisfied and Step 4 does not apply, the parties must notify the ACCC and must not “put into effect” (i.e., complete or implement) the JV until clearance is received or the statutory waiting period expires.

Key Legal Tests the ACCC Uses

The ACCC merger control framework centres on three concepts that frequently catch JVs. First, control, whether legal or de facto, arises where a party can determine or decisively influence the strategic commercial decisions of the target entity. Second, material influence captures situations short of outright control; a 30 % stake coupled with veto rights over pricing, for instance, may confer the ability to influence conduct materially. Third, for contractual JVs, the ACCC will assess whether the arrangement amounts to coordination between competitors that produces structural, lasting effects on competition in a relevant market. Industry observers expect the ACCC to interpret these tests broadly where competitors collaborate through a JV, particularly in concentrated sectors.

Scenario Examples

• Scenario A, Equity JV with shared control. Two national wholesalers form a 50/50 newco to jointly manage distribution. Each parent acquires 50 % of the shares and has board‑appointment and veto rights. This is an acquisition creating joint control, mandatory notification is likely required if the thresholds are met.
• Scenario B, Purely contractual co‑operation. Two construction firms sign a non‑exclusive project consortium agreement for a single infrastructure tender, with no equity exchange and no joint entity. Depending on duration, exclusivity and the degree to which it aligns the parties’ competitive conduct, this may fall outside the notification requirement, but the ACCC can still review arrangements that have lasting coordination effects.
• Scenario C, Minority stake with de facto control. An investor acquires a 30 % stake in a competitor and obtains veto rights over key commercial decisions, a board seat and access to competitively sensitive information. Despite holding less than 50 %, the investor may be found to exercise material influence, triggering notification.

Merger Control for Joint Ventures in Australia (2026): Notification Thresholds and Timelines

The ACCC notification thresholds are the quantitative gatekeepers of the regime. A notifiable acquisition must satisfy at least one of two principal tests, a turnover test and a transaction‑value test. These thresholds were refined effective 1 April 2026 to address feedback received during the initial implementation period. Parties to a JV should assess both tests early in the negotiation phase, because the suspensory obligation prohibits implementation from the moment the parties are aware that thresholds are met.

Suspensory Waiting Period

Once a notification is filed, the regime imposes a suspensory waiting period during which the parties must not implement the transaction. “Put into effect” is interpreted broadly: it covers not only the transfer of shares or assets but also the commencement of joint operations, the exercise of governance rights and the sharing of competitively sensitive information outside ring‑fenced environments. The ACCC has indicated it expects an initial‑phase review timeline, with the ability to extend the period for complex matters, including JVs in concentrated markets or those raising vertical or conglomerate concerns.

ACCC Filing Process and Document Checklist

The filing requires a notification form accompanied by a substantial evidence package. Based on ACCC guidance and preparatory advice published by leading advisory firms, the core documents typically expected include:

• Audited financial statements for each JV party (typically three years) and pro‑forma financials for the proposed JV entity.
• Market‑share data for each relevant product and geographic market in which the JV will operate.
• Copies of key transaction documents, the joint venture agreement, shareholders’ agreement, any side letters, and governance charters.
• Customer and supplier lists with concentration data and estimates of switching costs.
• Internal strategic documents (board papers, investment committee memoranda) that discuss competitive dynamics and the rationale for the JV.
• Details of any related agreements, such as non‑compete obligations, exclusive‑supply terms or IP‑licensing arrangements, that may amplify competition effects.

Early engagement with the ACCC is generally advisable where the notification obligation is uncertain or the transaction raises complex competition issues. The ACCC has indicated a willingness to accept voluntary pre‑filing engagement to narrow issues before the formal review clock starts.

How the Regime Applies to Different JV Structures

Not all joint ventures are created equal, and the merger reforms 2026 Australia framework treats different structures with markedly different levels of scrutiny. JV structuring Australia teams must map their proposed arrangement against the following four forms to assess JV competition risk accurately.

Newco equity JV. The formation of a jointly controlled new entity is the most clearly caught structure. Where two or more parties subscribe for shares in a newco and each obtains the ability to exercise joint control, through equal shareholdings, mutual veto rights or joint board appointments, the transaction is treated as an acquisition of shares in the newco. If the combined Australian turnover of the parents or the value of the assets being contributed meets the prescribed thresholds, notification is mandatory.

Minority stake in an existing company. A party acquiring a sub‑50 % interest in an existing competitor may still trigger the regime if the stake is accompanied by governance rights that confer material influence. Veto rights over pricing, output, capex or senior‑management appointments are common indicators. Parties should audit the full suite of governance, information and consent rights, not just the headline equity percentage.

When a Contractual JV Becomes Notifiable

Contractual JVs and consortium arrangements present the greatest zone of uncertainty. A purely contractual co‑operation, such as a one‑off joint bid or a time‑limited research collaboration, may not amount to an “acquisition” and will ordinarily fall outside the regime. However, industry observers expect the ACCC to look through the form to the substance. Practical markers that increase the risk of a contractual JV being treated as notifiable include:

• Long duration or automatic‑renewal provisions that create a lasting structural link between competitors.
• Exclusivity obligations that prevent either party from competing independently in the relevant market.
• Revenue‑ or profit‑sharing mechanisms that align the parties’ commercial incentives in a manner equivalent to equity co‑ownership.
• Significant market‑share effects, particularly where the combined market position of the JV parties exceeds levels that would raise concerns in a traditional merger.

Joint purchasing and marketing agreements. Horizontal co‑operation agreements (such as joint‑buying groups or co‑marketing alliances) will generally not amount to an acquisition for notification purposes, provided they do not create a jointly controlled entity or confer material influence. Nonetheless, such arrangements remain subject to the broader competition provisions of the Competition and Consumer Act and should be structured with appropriate safeguards, including information barriers and limits on the scope of collaboration.

Drafting and Governance Steps to Reduce ACCC Risk in a Joint Venture Agreement Australia

Proactive drafting is the most effective tool for managing regulatory risk under the new regime. This section provides five categories of drafting guidance, each accompanied by an annotated sample clause. The overarching objective is twofold: first, to ensure that the joint venture agreement Australia parties negotiate does not inadvertently confer control or material influence where none is intended; and second, to build compliance mechanics, standstills, ACCC co‑operation obligations and contingent exit rights, into the deal documents from day one.

Pre‑Formation Structuring

Before any agreement is signed, consider whether the proposed scope and structure of the JV can be narrowed to reduce the risk of triggering notification. Tactics include limiting the JV to a defined product line or geography (rather than the full competitive overlap), using non‑exclusive arrangements where possible, and ring‑fencing operationally autonomous functions to prevent either parent from influencing the other’s competitive conduct.

Governance: Controlling Control

The allocation of governance rights is the single most important variable for notification analysis. JV governance deadlock provisions, reserved‑matter lists and voting thresholds should be designed with ACCC scrutiny in mind. Specifically, parties should distinguish between “protective” rights (which safeguard the value of a minority investment) and “decisive” rights (which confer the ability to determine competitive strategy). Granting a minority investor veto rights over the annual budget, pricing strategy or key customer terms may elevate a passive investment into a material‑influence acquisition. For deeper analysis of deadlock mechanics and governance structures, see our guide on deadlock provisions in shareholders agreements.

Sample Clause Snippets

The following five annotated clauses illustrate how to embed ACCC‑compliance mechanics into a joint venture agreement. They are indicative only and must be adapted to the specific transaction and governing law.

• Clause 1, Pre‑Implementation Standstill. “No party shall put into effect, or take any step to implement, the transactions contemplated by this Agreement until: (a) the ACCC has issued a clearance decision; (b) the statutory waiting period has expired without the ACCC having issued a notice of opposition; or (c) the parties have received written confirmation from the ACCC that notification is not required.”, This clause mirrors the statutory suspensory obligation and protects parties from inadvertent gun‑jumping.
• Clause 2, Reserved Matters (Designed to Avoid Material Influence). “The Reserved Matters set out in Schedule [X] shall require the affirmative vote of [75 %] of the Board. For the avoidance of doubt, no single Shareholder (or its nominated directors) shall, by virtue of any Reserved Matter, acquire the ability to determine or veto the JV Company’s day‑to‑day pricing, output or customer‑allocation decisions.”, By expressly excluding competitive‑conduct matters from minority veto rights, this clause reduces the risk that a sub‑50 % stake is characterised as conferring material influence.
• Clause 3, Deadlock / Escalation Ladder with Mediator Clause. “If a Deadlock Notice is served: (a) the matter shall first be referred to the Chief Executive Officers of each Shareholder for negotiation in good faith for a period of [20] Business Days; (b) if not resolved, the matter shall be referred to mediation administered by [nominated body] in accordance with its rules; (c) if not resolved within [30] Business Days of the mediator’s appointment, either party may invoke the Buy‑Sell Mechanism in Clause [Y].”, An escalation ladder provides certainty and avoids protracted disputes that might draw ACCC attention to governance dysfunction. For comparative analysis of shoot‑out mechanisms, see resolving deadlocks in joint ventures (note: jurisdictional differences apply).
• Clause 4, Contingent Exit / Unwind. “If the ACCC: (a) declines to grant clearance; or (b) grants clearance subject to conditions that either Shareholder (acting reasonably) considers materially adverse to its commercial objectives, then either Shareholder may, within [15] Business Days of the ACCC decision, serve a Termination Notice. Upon service of a Termination Notice, the parties shall unwind all steps taken towards implementation and neither party shall have any further obligation under this Agreement, save for surviving confidentiality and costs provisions.”, This provides a clean exit path tied to an adverse ACCC outcome, preventing parties from being locked into a JV that has been structurally compromised by regulatory conditions.
• Clause 5, Confidentiality and Co‑operation for ACCC Filings. “Each party shall: (a) co‑operate with the other in preparing and lodging the Notification, including by providing access to documents and personnel reasonably required; (b) not communicate with the ACCC in connection with the Notification without prior notice to the other party; and (c) ensure that Competitively Sensitive Information exchanged for the purposes of the Notification is disclosed only to the Clean Team and is not used for any other commercial purpose.”, Clean‑team and co‑operation protocols reduce the risk of information‑exchange infringements during the notification process. Parties should also consult guidance on precise use of definitions in an agreement to ensure that key terms, including “Competitively Sensitive Information” and “Clean Team”, are tightly drafted.

Exit and Unwind Provisions

Beyond ACCC‑contingent termination, the JV should include exit mechanics that function independently, such as put/call options, drag‑along and tag‑along rights, and structured buy‑out triggers linked to performance milestones or material default. These mechanisms protect minority shareholders and reduce the risk of value‑destructive deadlocks that could, in turn, trigger ACCC interest in whether the JV is operating as intended.

Practical Process: Preparing an ACCC Filing, Evidence and Likely Outcomes

Deal teams should begin assembling the notification package during due diligence, rather than waiting until signing. The ACCC expects a complete, evidence‑backed submission; incomplete filings may delay the start of the review clock and increase the risk of supplementary information requests that extend the suspensory period.

Possible ACCC Outcomes

There are three broad outcomes following a JV notification under the ACCC merger control regime:

• Clearance without conditions. The ACCC concludes that the JV is not likely to substantially lessen competition. The parties may proceed to implementation.
• Clearance with remedies or undertakings. The ACCC may accept court‑enforceable undertakings, such as behavioural commitments (information barriers, access obligations) or structural remedies (divestiture of overlapping assets), as a condition of clearance.
• Opposition / block. The ACCC may oppose the transaction if it considers that the JV would be likely to substantially lessen competition and no adequate remedy is available. In such cases, the parties may not proceed unless they successfully challenge the decision through the Australian Competition Tribunal or the Federal Court.

Sector Examples

Early indications suggest that the ACCC is paying particular attention to JVs in concentrated sectors. In the renewables sector, Hamilton Locke has observed that joint ventures between energy developers, especially those combining generation, storage and grid‑access assets, face heightened scrutiny because of the relatively small number of market participants. Automotive dealer and franchisor JVs raise similar concentration concerns, particularly where the proposed JV covers a significant geographic territory and the parents are existing competitors in the same brand or service vertical. In each case, proactive engagement with the ACCC and robust governance ring‑fencing are the most effective risk‑management tools.

Managing Communications During the Suspensory Period

Because the regime is suspensory, parties must manage external and internal communications carefully. Press announcements, customer notifications and supplier briefings should be drafted on the basis that the JV is proposed, not concluded. Internal compliance training should emphasise that no joint operations, shared commercial decision‑making or exchange of competitively sensitive information may occur until clearance is received. The likely practical effect of these requirements is that JV transaction timelines will need to build in an additional buffer, industry observers estimate several weeks to months, compared to the pre‑2026 voluntary regime.

Conclusion

The rules governing joint ventures merger control Australia 2026 represent a fundamental shift: JV parties must now assess, notify and wait before implementation. Deal teams and in‑house counsel should embed the five‑step notification checklist, ACCC‑ready document preparation and the sample governance and standstill clauses discussed above into every JV negotiation. Where the notification obligation is uncertain, the safest course is to pause implementation and obtain specialist advice.

Sources

1. Australian Competition & Consumer Commission (ACCC), Mergers & Acquisitions
2. Allens, Merger Control Guide
3. Hamilton Locke, Navigating the ACCC’s New Merger Control Regime
4. Ashurst, Australian Merger Reforms
5. Gadens, Australian Mandatory Merger Control: Key Implications
6. Clifford Chance, A New Dawn for the Australian Merger Control Regime
7. BDO Australia, How to Prepare for Australia’s Merger Control Regime