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The Case Against 'French J's Arsonist'

Australian Business Law Review, Vol 43, 228, 2015

18 Pages Posted: 4 Feb 2016  

Katharine Kemp

University of New South Wales (UNSW) - Faculty of Law

Date Written: 2015

Abstract

It is a distinctive requirement of the Australian prohibition of misuse of market power that a firm must ‘take advantage’ of its substantial market power before it can be found to infringe s 46(1) of the Competition and Consumer Act 2010 (Cth). This element has been explained in the case law as requiring a causal link between the firm's market power and its conduct. A commonly-cited illustration is that provided by French J in the Natwest case, where he commented that a dominant firm would not misuse its market power if it hired an arsonist to burn down its rival's factory. This article argues that ‘French J’s arsonist’ would in fact contravene s 46(1). It is submitted that the dominant firm's act of arson is an example of ‘plain exclusion’, a key concern of competition law, which should fall squarely within the scope of this prohibition.

Keywords: Competition Law, Antitrust, Misuse of Market Power, Monopolization, Plain Exclusion

Suggested Citation

Kemp, Katharine, The Case Against 'French J's Arsonist' (2015). Australian Business Law Review, Vol 43, 228, 2015. Available at SSRN: https://ssrn.com/abstract=2726901

Katharine Kemp (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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