‘The Big Chill’? A Comparative Analysis of Effects-Based Tests for Misuse of Market Power
Posted by Social Science Research Network
‘The Big Chill’? A Comparative Analysis of Effects-Based Tests for Misuse of Market Power
By Katharine Kemp (University of New South Wales)
Abstract: In November 2016, the Australian government recently made the controversial announcement that it plans to amend the prohibition of misuse of market power in section 46(1) of the Competition and Consumer Act 2010 (Cth) (‘CCA’) to incorporate an effects-based test, the ‘substantial lessening of competition’ test, in line with the recommendations of the Competition Policy Review Panel. This proposal has met with vigorous opposition, particularly by those who argue that the amendment would in fact deter firms with substantial market power from engaging in conduct which is procompetitive and in the interests of consumers: that is, it would ‘chill’ competition. This article provides vital context for this debate by explaining the origins of these arguments and making a comparative analysis of the proposed amendment to section 46(1) of the CCA against several effects-based tests for unilateral anti-competitive conduct proposed or adopted in other jurisdictions. It concludes that, while claims regarding the ‘chilling’ effects of the proposed amendment have been overstated, there are more subtle weaknesses in the proposal which may create disincentive effects for dominant firms.
Featured News
UFC Reaches $375 Million Settlement in Antitrust Case
Feb 6, 2025 by
CPI
Brazilian Architecture Council Convicted of Antitrust Violations
Feb 6, 2025 by
CPI
Bipartisan Bill Seeks to Ban Chinese AI Software from US Government Devices
Feb 6, 2025 by
CPI
Senators Call for Investigation into RealPage Algorithm’s Impact on Military Housing Costs
Feb 6, 2025 by
CPI
ECB Seeks Faster Digital Euro Legislation Amid US Stablecoin Push
Feb 6, 2025 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – International Criminal Enforcement
Jan 23, 2025 by
CPI
The Antitrust Division’s Recent Work to Combat International Cartels
Jan 23, 2025 by
Emma Burnham & Benjamin Christenson
Information Sharing: The New Frontier of U.S. Antitrust Enforcement
Jan 23, 2025 by
Brian P. Quinn, Casey Kovarik & Michael Tubach
The Key Role of Guidelines on Exchanges of Information Among Competitors and the Divergent Transatlantic Paths
Jan 23, 2025 by
Rosa Abrantes-Metz & Albert Metz
Leniency, Whistleblowers, and Compliance
Jan 23, 2025 by
Richard Powers, Tara O’Malley & Cory Gordon