On 5 January 2026 the Australian Competition and Consumer Commission (ACCC) announced it had accepted a court-enforceable undertaking requiring WiseTech Global (WiseTech) to divest Expedient, a logistics software business it had acquired via its takeover of U.S. firm e2open (completed August 2025) (Expedient). The ACCC opened an enforcement investigation after the merger closed, finding that WiseTech – already Australia’s largest provider of cloud-based logistics software (CargoWise) – had “substantial market power” and that the deal removed a close competitor in Australia/New Zealand. The ACCC highlighted that WiseTech went ahead with the acquisition before receiving regulatory approval, despite clear warnings about potential competition concerns. In practical terms, WiseTech must sell Expedient to an ACCC-approved buyer capable of running it as a “viable competitor”.
The undertaking is given under s 87B of the Competition and Consumer Act 2010 (Cth) and resolves the ACCC’s concern that the merger likely breached s 50’s prohibition on acquisitions that substantially lessen competition. As the ACCC noted, without remedial action the merged firm “could increase prices and/or reduce the service quality” of its software services. This outcome – a structural remedy (divestment) via an 87B undertaking – is consistent with ACCC practice. For example, in recent cases the ACCC has accepted undertakings to divest assets or ensure open access where necessary: in Qube/MIRRAT (2025) it imposed a non‑discriminatory “open access” regime at a port terminal, and in Sigma/Chemist Warehouse (2024) it required behavioural safeguards (such as easy exit and data protections for pharmacies) to maintain competitive constraints. (Under the new regime, the ACCC can also impose such conditions in a clearance determination rather than only accept voluntary undertakings).
Importantly, this matter highlights the new mandatory merger laws effective 1 January 2026. Prior to the new merger regime coming into effect on 1 January 2026, there was no requirement for a merger party to obtain ACCC clearance before proceeding to complete an acquisition (it was a voluntary, informal process). As of 1 January 2026, acquirers are required to notify the ACCC of proposed mergers exceeding specified thresholds, and such mergers must receive ACCC approval prior to completion.
If parties ignore this and close a notifiable deal without clearance, the merger is automatically void. The ACCC emphasised it “retains the ability to investigate acquisitions below the notification thresholds under the substantial lessening of competition test”. Under the new law, even acquisitions that have already been completed but were not notified—commonly referred to as ‘gun-jumping’—can be unwound as unlawful. The ACCC has stated that it can investigate cases where an acquisition requiring notification has been completed without obtaining clearance, as such transactions would be automatically void.
New pecuniary penalties for non-compliance
Under the mandatory notification regime, completing a notifiable acquisition without ACCC approval or providing false/misleading information can trigger substantial financial penalties. Corporations may face very large pecuniary penalties for serious contraventions, while individuals knowingly involved in the contravention can face maximum penalties (including up to $2.5 million in certain circumstances). These penalties are in addition to the risk that the transaction is automatically void or that structural/behavioural remedies will be imposed. Parties must now factor these financial risks into deal planning and compliance processes.
Key takeaways
Any sizeable merger must now be structured with ACCC clearance in mind. Parties should engage early with the ACCC and carefully assess competition issues. In particular:
- Pre‑notification and suspension: If deal thresholds are met, the acquisition must be notified and cannot close until the ACCC (or Australian Competition Tribunal) approves. Failure to do so risks voiding the deal outright.
- Competition test (s 50): The ACCC will apply the “substantial lessening of competition” test. It has clarified this includes any merger that would “create, strengthen or entrench” market power. Mergers among significant competitors (like CargoWise and Expedient) will be heavily scrutinised.
- Potential remedies: The ACCC may seek undertakings to address concerns (often structural divestments), as it did here. Parties should consider what commitments might be acceptable and be prepared to justify how a merger will maintain competition.
- Policy and precedents: Recent ACCC enforcement shows a readiness to unwind or condition mergers ex post. This follows ACCC policy updates (e.g. new Merger Process Guidelines, Merger Assessment Guidelines 2025), which explicitly allow investigations of any non-notified deal and urge firms to avoid “gun-jumping”.
- Pecuniary penalties and enforcement risk: Completing a notifiable acquisition without ACCC approval (or providing false/misleading information) risks substantial corporate and individual penalties, in addition to the transaction being automatically void or subject to structural/behavioural remedies.
The WiseTech–Expedient undertaking sends a clear message: anti-competitive overlaps are off-limits. With stronger enforcement powers under the new regime, the ACCC requires mergers to be carefully reviewed and fully compliant before completion. Early planning and proactive engagement are now more important than ever.
This article was prepared with assistance from Adrika Dhawan, Lawyer.
