Competition Law Reading Room
Use of Market Power and Counterfactuals in New Zealand and Australian Competition Laws
Cento Veljanovski and Roger Featherston
Conference Papers: 25th Competition Policy and Law Institute of New Zealand (CPLINZ) Conference, Wellington (August 2011)
"These two papers look at recent decisions and controversies surrounding the counterfactual test under s 36 of the New Zealand Commerce Act 1986, and s46 of the Australian Competition and Consumer Act 2010 respectively. In 2010 the New Zealand Supreme Court ... affirmed the counterfactual as the test to determine whether there has been a 'use' of market power (the equivalent of monopolisation under the Sherman Act, or abuse of dominance under Article 102TFEU) for a proscribed purpose. Veljanovski's paper traces through the development of the s36 counterfactual, and concludes that it is flawed and potentially underinclusive. Featherston examines the development of and problems associated with the Australian equivalent s46 counterfactual and its relevance to New Zealand. Both papers were delivered at the 25th Competition Policy and Law Institute of New Zealand (CPLINZ) conference held in Wellington in August 2011."