Competition and Consumer Law Journal Volume 25 Part 1

Articles

The geographic dimension of markets: Some observations — (2017) 25 CCLJ 1

Rhonda L Smith and Arlen Duke

Despite well-established principles for identifying the geographic dimension of markets, since the late 1990s its often seems to receive scant attention, possibly due to significant factual difficulties that override or limit systematic consideration of substitutability. This article begins with an overview of the various methodologies that the courts have employed or could employ to define the geographic dimension of the market. Then the role that supply-side substitutability should play in this process is considered, along with the extent to which supply side is actually considered in key jurisdictions. The impact of globalisation is then discussed, along with the complication that arises when incorporating online sales, often occurring via two-sided platforms and markets, into the market analysis. Finally, consideration is given to whether the current definition of the term 'market' in s 4E of the Competition and Consumer Act 2010 (Cth) limits the extent to which the ideas expressed in this article can be meaningfully incorporated into market definition in the Australian context.

Foreign ownership and wealth transfers in New Zealand competition law — (2017) 25 CCLJ 26

Rex Tauati Ahdar

An otherwise unlawful practice or merger under the Commerce Act 1986 can be authorised by the New Zealand Commerce Commission if the 'public benefits' from it outweigh the detriments arising from the lessening of competition. Are wealth transfers redounding to the foreign owners of domestic firms a public benefit for antitrust authorisation purposes? Wealth transfers from NZ consumers to the local owners of the market-powerful firms are treated as 'neutral'. By contrast, supranormal returns to foreign shareholders of local firms are stated to be not neutral, nor considered benefits to the public of New Zealand. In practice, however, supra-competitive returns to overseas shareholders are largely treated as if the benefits were flowing to locally-owned companies. This article challenges the current generous stance. Too much is simply assumed in an overseas-owned applicant's favour and this does little to foster the NZ economy. It is time for some healthy scepticism in respect of the benefits from foreign ownership in antitrust law.

The intersection between agency and competition law: What are the implications of the High Court's decision in Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd? — (2017) 25 CCLJ 53

Justin Oliver and Paul Schoff

The decision of the High Court in Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd has redefined the way in which Australia's competition law applies to bona fide agency relationships in circumstances where both the principal and its agent offer goods or services to the public.

In so doing, the Court has treated as an attempt at price fixing dealings between a principal and a sales agent which are analogous to other types of distribution arrangements that are traditionally characterised as 'vertical'. We contend that the Competition and Consumer Act should not strictly prohibit such arrangements, but rather deem them illegal only where they have the purpose, or are likely to have the effect, of substantially lessening competition. This would align more closely with the approach taken in assessing vertical restraints, under both the Australian Act and the law in other jurisdictions.

Reporting on hardship practice in the consumer credit and energy sectors: An analysis — (2017) 25 CCLJ 71

Evgenia Bourova, Ian Ramsay and Madeleine Roberts

Reporting is a critical regulatory strategy used to provide insight into the level and quality of service providers' compliance with legal obligations in a regulated sector. Transparent reporting is particularly important in the area of hardship practice, where the legal protections for consumers experiencing payment difficulties leave service providers in the consumer credit and energy sectors with significant discretion over when and how to provide assistance. In this article, we undertake a comparative analysis of the legal frameworks for reporting on hardship practice in these sectors. On the basis of this analysis, we make recommendations for the implementation of a new set of performance indicators for the consumer credit sector, to supplement its existing breach reporting framework. Our recommendations draw upon the example of the energy sector to adopt elements of what is known as a 'principles-based' approach to reporting, which aims to look beyond the effectiveness of credit providers' internal compliance systems, and into the extent to which their hardship practices are achieving the consumer protection objectives of the regulatory framework itself.