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Competition, monopoly and the role of intent in s 2 of the Sherman Act: Lessons from abroad

Shirley Quo
(2010) 38 Australian Business Law Review 270

 

Abstract

'This article argues that intent is, or should be, an indispensable element of the monopolisation offence in s 2 of the Sherman Act. Given that s 2 is the statutory equivalent of s 46 of the Trade Practices Act, the way in which the intent requirement has been interpreted by the United States courts provides useful lessons for the application of the purpose test in s 46. Knowledge of the impugned corporation’s intent may help to illuminate the effect of its actions in ambiguous cases. Evidence of intent is also relevant to the question of whether the conduct is properly characterised as exclusionary or anticompetitive. Intent evidence is no more unreliable than the equally inexact nature of economic evidence and the problems involved in sorting out the conflicting expert testimony in antitrust cases.'

 

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