The Need to Close the 'Take Advantage' Gap in the Regulation of Unilateral Anti-Competitive Conduct

Abstract

This article proposes that s 46 of the Trade Practices Act be amended so that a firm 'takes advantage' of its market power not only where that power gives the firm the ability to engage in anti-competitive conduct but also where it gives the firm the motivation to do so. Amending the provision in this manner would close a gap that currently exists in the regulation of unilateral anti-competitive conduct that allows firms with market power to protect or strengthen that power by engaging in conduct they would have the ability to engage in even if they did not possess market power.

Keywords: anti-competitive conduct, Trade Practices Act

JEL Classification: K00, K19, K21