Misuse of Market Power in Australia and Abuse of Dominance in Canada: Two Legislated Effects Tests for Unilateral Conduct

(2018) 26 Australian Journal of Competition and Consumer Law 174

UNSW Law Research Paper No. 18-85

20 Pages Posted: 26 Nov 2018 Last revised: 28 Nov 2018

See all articles by Katharine Kemp

Katharine Kemp

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

Date Written: January 1, 2018

Abstract

The new Australian law against misuse of market power (as amended in 2017) shares a number of similarities with the Canadian law against abuse of dominance. This article makes a comparative analysis of these laws against unilateral anti-competitive conduct, highlighting their similarities, including their focus on whether the impugned conduct has the effect or likely effect of substantially lessening competition. It also identifies important differences, including the Australian requirement to prove “purpose or effect” in contrast to the Canadian requirement to prove “purpose and effect” and the respective methods of addressing “legitimate business purpose” claims. It illustrates some of these differences with reference to a recent digital economy case in which the Canadian Commissioner of Competition succeeded in proving that a firm abused its dominance by imposing restrictions on access to data it controlled, notwithstanding the firm’s attempted justifications on privacy grounds.

Keywords: market power, anti-competitive conduct, competition, Australia, Canada, data, privacy

Suggested Citation

Kemp, Katharine, Misuse of Market Power in Australia and Abuse of Dominance in Canada: Two Legislated Effects Tests for Unilateral Conduct (January 1, 2018). (2018) 26 Australian Journal of Competition and Consumer Law 174; UNSW Law Research Paper No. 18-85. Available at SSRN: https://ssrn.com/abstract=3289403 or http://dx.doi.org/10.2139/ssrn.3289403

Katharine Kemp (Contact Author)

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

Kensington, New South Wales 2052
Australia

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