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Use of Market Power and Counterfactuals in New Zealand and Australian Competition Laws

27 Pages Posted: 11 Aug 2011  

Cento Veljanovski

Case Associates; Institute of Economic Affairs

Roger Featherston

affiliation not provided to SSRN

Date Written: August 11, 2011

Abstract

These two papers look at recent decisions and controversies surrounding the counterfactual test under s 36 of the New Zealand Commerce Act 1986, and s46 of the Australian Competition and Consumer Act 2010 respectively. In 2010 the New Zealand Supreme Court in 0867 affirmed the counterfactual as the test to determine whether there has been a ‘use’ of market power (the equivalent of monopolisation under the Sherman Act, or abuse of dominance under Article 102TFEU) for a proscribed purpose. Veljanovski’s paper traces through the development of the s36 counterfactual, and concludes that it is flawed and potentially underinclusive. Featherston examines the development of and problems associated with the Australian equivalent s46 counterfactual and its relevance to New Zealand. Both papers were delivered at the 25th Competition Policy and Law Institute of New Zealand (CPLINZ) conference held in Wellington in August 2011.

Keywords: counterfactual, market power, monopolisation, abuse of dominance, Baumol-Willig rule, predation, foreclosure, access, interconnection

JEL Classification: D4, K0, K21, L1, L4, L11, L12, L13, K14, L41, L44, N60

Suggested Citation

Veljanovski, Cento and Featherston, Roger, Use of Market Power and Counterfactuals in New Zealand and Australian Competition Laws (August 11, 2011). Available at SSRN: https://ssrn.com/abstract=1908088 or http://dx.doi.org/10.2139/ssrn.1908088

Cento Veljanovski (Contact Author)

Case Associates ( email )

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London, W8 4SG
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HOME PAGE: http://www.casecon.com

Institute of Economic Affairs

2 Lord North Street, Westminster
London, SW1P 3LB
United Kingdom

Roger Featherston

affiliation not provided to SSRN ( email )

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