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

New Zealand Business Law Quarterly, 2013

University of Tennessee Legal Studies Research Paper No. 208

14 Pages Posted: 4 Nov 2012 Last revised: 11 Apr 2013

Jeffery M. Cross

Freeborn & Peters

J. Douglas Richards

Cohen Milstein

Maurice E. Stucke

University of Tennessee College of Law; The Konkurrenz Group

Spencer Weber Waller

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

Date Written: November 2, 2012

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.

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

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: https://ssrn.com/abstract=2170538

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-stucke/

The Konkurrenz Group ( email )

5335 Wisconsin Ave., NW
Suite 440
Washington, DC 20015
United States

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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