A PYMNTS Company

The Case Against ‘French J’s Arsonist’

By  |  February 10, 2016

Posted by Social Science Research Network

    Get the Full Story

    Complete the form to unlock this article and enjoy unlimited free access to all PYMNTS content — no additional logins required.

    yesSubscribe to our daily newsletter, PYMNTS Today.

    By completing this form, you agree to receive marketing communications from PYMNTS and to the sharing of your information with our sponsor, if applicable, in accordance with our Privacy Policy and Terms and Conditions.

    The Case Against ‘French J’s Arsonist’

    Katharine Kemp (University of New South Wales)

    Abstract:     It is a distinctive requirement of the Australian prohibition of misuse of market power that a firm must ‘take advantage’ of its substantial market power before it can be found to infringe s 46(1) of the Competition and Consumer Act 2010 (Cth). This element has been explained in the case law as requiring a causal link between the firm’s market power and its conduct. A commonly-cited illustration is that provided by French J in the Natwest case, where he commented that a dominant firm would not misuse its market power if it hired an arsonist to burn down its rival’s factory. This article argues that ‘French J’s arsonist’ would in fact contravene s 46(1). It is submitted that the dominant firm’s act of arson is an example of ‘plain exclusion’, a key concern of competition law, which should fall squarely within the scope of this prohibition.