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Use of Dominance, Unlawful Conduct, and Causation Under Section 36 of the New Zealand Commerce Act: A U.S. Perspective


Jeffery M. Cross


Freeborn & Peters

J. Douglas Richards


Cohen Milstein

Maurice E. Stucke


University of Tennessee College of Law

Spencer Weber Waller


Loyola University of Chicago, School of Law - Institute for Consumer Antitrust Studies

November 2, 2012

New Zealand Business Law Quarterly, 2013
University of Tennessee Legal Studies Research Paper No. 208

Abstract:     
The proper interpretation of the abuse of dominance provisions in Section 36 of the New Zealand Commerce Act has been a matter of controversy. The courts of New Zealand have taken a view of the requirements of this important provision of competition law in a narrow and formal manner that makes it very difficult to take enforcement action against conduct which has a net anticompetitive effect, but which has no, or at best minimal, business or procompetitive justification. We offer this white paper to provide a United States perspective to suggest that the current counterfactual test applied by the courts of New Zealand is not an effective enforcement tool and significantly out of step with the interpretation of unilateral conduct by dominant firms in the United States.

Number of Pages in PDF File: 14

Keywords: New Zealand, Commerce Act, Commerce Commission, monopolization, abuse of dominance, counterfactual, rule of reason, Microsoft, Telecom

JEL Classification: D4, D42, K4, K21, L12, L4

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Date posted: November 4, 2012 ; Last revised: April 11, 2013

Suggested Citation

Cross, Jeffery M. and Richards, J. Douglas and Stucke, Maurice E. and Waller, Spencer Weber, Use of Dominance, Unlawful Conduct, and Causation Under Section 36 of the New Zealand Commerce Act: A U.S. Perspective (November 2, 2012). New Zealand Business Law Quarterly, 2013; University of Tennessee Legal Studies Research Paper No. 208. Available at SSRN: http://ssrn.com/abstract=2170538

Contact Information

Jeffery M. Cross
Freeborn & Peters ( email )
J. Douglas Richards
Cohen Milstein ( email )
Maurice E. Stucke
University of Tennessee College of Law ( email )
1505 W. Cumberland Ave.
Knoxville, TN 37996
United States
865-974-9816 (Phone)
HOME PAGE: http://law.utk.edu/people/maurice-e-stucke/

Spencer Weber Waller (Contact Author)
Loyola University of Chicago, School of Law - Institute for Consumer Antitrust Studies ( email )
25 E. Pearson
Chicago, IL 60611
United States
312-915-7137 (Phone)
312-915-7201 (Fax)

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