Search

Increasing market concentration has become a topical issue in competition law worldwide. This article explores how firms, especially digital platform businesses, increase market concentration which may facilitate entrenched market power and anti-competitive conduct in their upstream or downstream markets. It considers in an Australian context two specific ways in which the power of a dominant firms including digital platforms may be constrained. The first is allowing the parties with lesser market power to collectively bargain, which can redress the imbalance in bargaining power to make the market work more effectively. A second and related option is the introduction of mandatory codes of conduct, which may be suitable in markets where perennial problems with market power imbalances exist. Australian experience suggests that these options can assist markets to function more effectively, and they may provide additional flexibility for other jurisdictions. [ABSTRACT FROM AUTHOR]

Many claims have been made about the complexity of Australian corporate law, prompting a succession of inquiries and legislative reforms. Despite this attention, there has been little examination of the idea of complexity itself. It is assumed that we know what it is and what causes it. Looking behind those assumptions, this article draws on the work of complexity theorists to analyse why our system of corporate law is complex and to argue for realistic expectations in efforts to address the 'complexity problem'. [ABSTRACT FROM AUTHOR]

Competition assessment in Australia has traditionally been based on an evaluation of the market structure relying on five factors, namely the degree of market concentration, the height of barriers to entry, the extent of product differentiation, the extent of vertical integration, and the nature of arrangements between firms. These factors, known as the 'QCMA factors', are characteristic of competition in the manufacturing industries of the 'old economy'. Since the ascendancy of Chicago and Post-Chicago School thinking competition analysis in Australia has also taken into consideration non-structural factors. However, in light of the dominance of big tech companies in online markets, the so-called 'Neo-Brandeisian School' has advocated focusing on structural elements that are characteristic of online markets. This article examines to what extent the QCMA factors still a suitable structural framework for the assessment of competition in online markets. [ABSTRACT FROM AUTHOR]

This article explores the interaction between the National Electricity Law and potential algorithmic collusion in the National Electricity Market ('NEM'). Reviewing the current state of Australian competition law, this article concludes that the law does not prohibit algorithmic collusion in the NEM, even though such collusion has serious ramifications for Australian consumers. Despite recent hesitancy to addressing algorithmic collusion, this article argues we cannot afford to 'wait and see' and proposes nuanced solutions that appropriately address algorithmic collusion in the NEM. These solutions include a notification regime, a reduction in bidding transparency, and a novel definition to 'concerted practice' that would ensure competition law captures tacit and autonomous algorithmic collusion. More generally, the approach in this article highlights the need for market-specific analysis of algorithmic collusion, particularly as the competitive impact of using algorithmic technology depends on the circumstances in which the algorithm is deployed. [ABSTRACT FROM AUTHOR]

Financial technology (Fintech) has been applied to business models in the financial services sector. Associated with this has been the rise of regulatory technology (Regtech) in that sector. However, the major application of Regtech in financial services is as a tool for regulatory compliance, rather than for regulatory enforcement. This article explores an approach to applying Regtech techniques to antitrust enforcement. It does this by applying those techniques to the detection of resale price maintenance (vertical price fixing). The exploration is limited to pricing on e-commerce platforms such as AliExpress, eBay, and Amazon Marketplace. The Regtech application is effected by presenting the literature and cases on resale price maintenance and the application of the law in Australia, the US, and the EU. The article examines the application of machine learning in the Regtech environment and the ways in which application programming interfaces could be used. The article proposes approaches to machine learning solutions for the detection of potentially infringing resale price maintenance conduct. It also presents the basis of an algorithm for detecting that conduct. [ABSTRACT FROM AUTHOR]

The article discusses the developments in National Competition Laws including Australian Competition and Consumer Commission's announcement on updated immunity and cooperation Policy for cartel conduct; FCA to start a sector inquiry into the rental car and taxi industry following new national legislation enacted to regulate both industries in a similar way; and Belgian Competition Authority's (BCA's) publish of new guidelines on the exchange of information regarding associations of undertaking.

What does it mean for an agreement to have an anticompetitive 'object' under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an 'object' case by reference to the agreement parties' subjective intention, and if so, how? What exactly is the relationship between an agreement's object and the parties' subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin's theory of legal interpretation as the analytical basis, this article argues for a 'mixed' conception of the 'object' concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the 'object' analysis of agreements. [ABSTRACT FROM AUTHOR]

The Competition and Consumer Act has been amended to prohibit concerted practices which have the purpose or effect of substantially lessening competition ('SLC'). Overseas experience shows that a wide range of conduct, potentially including a single instance of information sharing, may be a concerted practice. That means the SLC test will be determinative. We argue that the test should be applied by setting out the theory of harm that is alleged to apply to the conduct that is consistent with economic principles; and then, determining whether the facts consistent with that theory are true in the circumstances. Finally, we round up some likely areas of focus for the regulator in enforcing the new prohibition, including online, and explore the role of authorisation. [ABSTRACT FROM AUTHOR]

One of the results of the Harper Review is the insertion of a new form of cartel conduct into s 45 of the Competition and Consumer Act 2010 (Cth) ('CCA'). In addition to prohibiting a contract, arrangement or understanding which has the purpose, effect or likely effect of substantially lessening competition, the CCA now also prohibits 'concerted practices' which meet the same 'substantial lessening of competition' test. This article examines the meaning and application of this prohibition, focusing specifically on two critical uncertainties in the legislation. The first is the meaning of a concerted practice. The second is the application of the prohibition to vertical and hybrid restraints, as well as the horizontal restraints that are historically associated with s 45 of the CCA. [ABSTRACT FROM AUTHOR]

The decision of the High Court in Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd has redefined the way in which Australia's competition law applies to bona fide agency relationships in circumstances where both the principal and its agent offer goods or services to the public. In so doing, the Court has treated as an attempt at price fixing dealings between a principal and a sales agent which are analogous to other types of distribution arrangements that are traditionally characterised as 'vertical'. We contend that the Competition and Consumer Act should not strictly prohibit such arrangements, but rather deem them illegal only where they have the purpose, or are likely to have the effect, of substantially lessening competition. This would align more closely with the approach taken in assessing vertical restraints, under both the Australian Act and the law in other jurisdictions. [ABSTRACT FROM AUTHOR]

Despite well-established principles for identifying the geographic dimension of markets, since the late 1990s its often seems to receive scant attention, possibly due to significant factual difficulties that override or limit systematic consideration of substitutability. This article begins with an overview of the various methodologies that the courts have employed or could employ to define the geographic dimension of the market. Then the role that supply-side substitutability should play in this process is considered, along with the extent to which supply side is actually considered in key jurisdictions. The impact of globalisation is then discussed, along with the complication that arises when incorporating online sales, often occurring via two-sided platforms and markets, into the market analysis. Finally, consideration is given to whether the current definition of the term 'market' in s 4E of the Competition and Consumer Act 2010 (Cth) limits the extent to which the ideas expressed in this article can be meaningfully incorporated into market definition in the Australian context. [ABSTRACT FROM AUTHOR]

The article presents a comparative analysis of the proposed amendment to section 46(1) of the Competition and Consumer Act 2010 (CCA) against several effects-based tests for unilateral anticompetitive conduct. It mentions unilateral anticompetitive conduct and outlines the debate concerning the prohibition of misuse of market power in Australia. It also mentions arguments for and against effects-based tests based on decision theory and error–cost analysis.