Should Common Law Doctrines Influence Our Approach to Restraint of Trade?

Posted by D. Daniel Sokol

From the land of vegemite sandwiches, Mark Humphery von Jenner, University of New South Wales - School of Banking and Finance, University of New South Wales - Faculty of Law asks Should Common Law Doctrines Influence Our Approach to Restraint of Trade?

ABSTRACT: This article considers if common law doctrines should influence the interpretation of the restraint of trade doctrine. In so doing it compares and contrasts the prohibitions under the United States Sherman Act Section 1 with the prohibitions in Australia's Trade Practices Act Part IV and Section 45B. The article finds that common law doctrines should influence Sherman Act Section 1 but not Trade Practices Act Part IV. This has important implications for the imposition and regulation of salary caps in professional sport, which may be a 'reasonable' restraint of trade at common law, but may contravene Trade Practices Act Section 45B.