Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Tuesday, June 2, 2009

The unfulfilled promise of New Zealand’s monopolisation law: Sources, symptoms and solutions

Posted by D. Daniel Sokol

Rex Ahdar (Law, University of Otago) has an interesting piece on The unfulfilled promise of New Zealand’s monopolisation law: Sources, symptoms and solutions. Download Monopolization.CCLJ

ABSTRACT: New Zealand’s monopolisation prohibition — s 36 of the Commerce Act 1986 — is not an effective weapon in the antitrust armoury. Proving a violation of s 36 is most difficult as the paucity of successful cases illustrates. Based on a laudable concern that efficient, innovative conduct might be curtailed, the New Zealand courts have overcompensated by promulgating a strict counterfactual test for ‘taking advantage of’ that thwarts effective prosecution of monopolising conduct. This article traces the reasons for this unduly lenient approach and puts forward several suggested solutions — including a multi-stage, burden-shifting, composite test — aimed at reviving s 36 as an effective enforcement tool against single-firm conduct that curtails effective competition.

http://lawprofessors.typepad.com/antitrustprof_blog/2009/06/the-unfulfilled-promise-of-new-zealands-monopolisation-law-sources-symptoms-and-solutions.html

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