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Competition Law Reading Room

Resale price maintenance: An overview of the per se ban in light of recent court observations

Warren Pengilley
(2008) 16 Competition and Consumer Law Journal 1-45

 

Abstract

'The US Supreme Court has recently ruled that resale price maintenance agreements are not per se illegal but are subject to a competition test. In doing so, it has overruled a prior precedent of about 100 years standing. Why should this not be the case in Australia as well? This article argues that the US decision was taken under a different resale price maintenance law from that in Australia. It also argues that Australian industry concentration and the previous all embracing use of resale price maintenance warns against a liberalisation of the present resale price maintenance per se ban. It further suggests that the real answer as to future likelihood lies in the political past and it discusses this in the Australian context.'