The Vodafone/Sky Decision and Vertical Mergers in New Zealand

2021 ◽  
pp. 0003603X2110449
Author(s):  
Paul Scott
Keyword(s):  
New Zealand ◽  
Competition Law ◽  
Current Thinking ◽  
Vertical Mergers

As Professor Ahdar’s text shows, New Zealand’s competition law has undergone an evolution. Views on various practices have changed and this led to academic disagreements. One area, however, has been free from any controversy and that is vertical mergers. The reason is not uniformity of philosophy—but rather more prosaic. New Zealand has not had any cases. This changed with the Vodafone/Sky merger. This article discusses the Commerce Commission’s decision to decline the merger and how it is in line with current thinking on vertical mergers.

The Goals of Competition Law

2020 ◽  
pp. 58-89
Author(s):  
Rex Ahdar
Keyword(s):  
New Zealand ◽  
Competition Law ◽  
Chicago School ◽  
Labour Government ◽  
Business Interests ◽  
Michael Porter ◽  
Workable Competition ◽  
Term Benefit ◽  
Harvard School

The Commerce Act 1986 expressly states its object is to promote “effective or workable competition.” This traditional Harvard School approach has been consistently assailed by big business interests in New Zealand, assisted by a phalanx of “down-under” Chicago School economists and lawyers. Chicagoans have had minor successes in terms of amendments to the principal Act, and some quite notable court victories, but the glittering prize, the overall objective of the Act, has remained unchanged. Chicago won several battles, but lost the war. A major amendment to the Act in 2001, promoted by a Labour government, recast its object to state that its purpose was “to promote competition in markets for the long-term benefit of consumers within New Zealand.” After a quiet period where nothing seemed to have changed, the most recent signs are that a mild preference for consumers is appearing. The chapter also examines the international competitiveness arguments of Michael Porter.

Introduction

2020 ◽  
pp. 1-34
Author(s):  
Rex Ahdar
Keyword(s):  
Industrial Organization ◽  
New Zealand ◽  
Competition Law ◽  
Small Fish ◽  
Distinctive Features ◽  
Law And Policy ◽  
Close Relationship ◽  
The Law

This chapter examines four distinctive features that mark competition law in New Zealand (NZ). Some of these (the first and fourth) are unique to NZ while others (the second and third) are common to all antitrust regimes. The first characteristic is the close relationship with Australian competition law and policy. Being modelled upon Australian legislation, NZ law tracks Australian developments, although the pattern is not one of slavish adherence. A second motif is the ongoing tension between competition law as law and competition law as applied to industrial organization economics. NZ courts have consistently held that economics plays an important but supplemental and subsidiary role. The concepts of “competition” and “market” are discussed. Third, there is ambivalence over the ambit of competition law. This chapter examines both exemptions from the Commerce Act 1986 and the extension of competition law to give it a limited extraterritorial effect. Fourth, another recurring theme is the prevalence of the small, isolated economy argument (NZ is a small fish in the global pond) in the development of policy, doctrine, and the interpretation of the law.

scholarly journals The Impact of Economics on Competition Law in New Zealand Some Reflections on the First Decade

1996 ◽  
Vol 26 (1) ◽  
pp. 17
Author(s):  
Mark N Berry
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Law And Economics ◽  
Competition Law ◽  
Institutional Framework ◽  
Decision Making Process ◽  
Future Trends ◽  
Brief Assessment ◽  
The Impact ◽  
Theoretical Foundations

The economic focus of the Commerce Act 1986 is unique in New Zealand, both in terms of its theoretical foundations and its institutional framework. The author reflects on these features of the Act and the impact that economics has had on the decision-making process. This article reviews the New Zealand landscape in terms of the goals of the Commerce Act, its institutional framework, and the manner in which the strict rules of evidence may be relaxed. It then considers, by using Justice Breyer's framework (in S J Breyer "Economics and Judging: An Afterword on Cooter and Wald" (1987) 50 Law and Contemp Probs 245), how economics has impacted upon the content of rules of law and the proof of specific economic facts. The author concludes with a brief assessment of likely and desirable future trends in New Zealand law, arguing that it was likely that economics would continue to have a major impact on the Commerce Act; aside from in the interpretation of dominance principles, the author argues that the foundations are strongly in place for the continued growth of law and economics in this field.

The Evolution of Competition Law in New Zealand

2020 ◽  
Author(s):  
Rex Ahdar
Keyword(s):  
New Zealand ◽  
Open Economy ◽  
Competition Law ◽  
Chicago School ◽  
Case Law ◽  
Market Definition ◽  
Exclusive Dealing ◽  
Private And Public ◽  
Legislative Amendments ◽  
Modern Era

This monograph presents a detailed, lively, and original chronicle and analysis of New Zealand’s competition law. The modern era began with the Commerce Act 1986 and since then a steady corpus of case law has traversed all the major areas of antitrust law: cartels, resale price maintenance, exclusive dealing, tying, monopolization, predatory pricing, mergers, private and public enforcement, and so on. The volume explains the rationale for the major reforms of the Commerce Act and traces the development of key concepts such as effective competition, efficiency, market power, market definition, entry barriers, wealth transfers, and public benefit over the last 34 years. The book provides an extended critique of the landmark cases and legislative amendments. It assesses the desirable, and undesirable, aspects of competition law’s interpretation and doctrinal development by the courts and Commerce Commission. Systemic issues are explored such as: how well has New Zealand moulded its own competition law, whilst, nonetheless, selectively drawing upon the policy prescriptions, case law, and wisdom from foreign jurisdictions? How well has it adapted its competition law to the reality of it being a small, distant, isolated, deregulated, open economy? How has the transplanted Harvard School versus Chicago School debate played out in New Zealand? How have unique, if not rash, experiments such as its “light-handed” regulation for utilities worked? It concludes by drawing together the common threads that mark the modern era and offering some predictions about how the next decades of New Zealand competition law might unfold.

Object and intention under Article 101 TFEU: Lessons from Australia, New Zealand and analytical jurisprudence

2019 ◽  
Vol 48 (3) ◽  
pp. 114-141
Author(s):  
Kelvin Hiu Fai Kwok
Keyword(s):  
European Union ◽  
New Zealand ◽  
European Commission ◽  
Common Law ◽  
Competition Law ◽  
Legal Interpretation ◽  
The European Union ◽  
Analytical Basis ◽  
The World ◽  
The Relationship

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.

Retrospect and Prospect

2020 ◽  
pp. 289-302
Author(s):  
Rex Ahdar
Keyword(s):  
New Zealand ◽  
Environmental Impacts ◽  
Competition Policy ◽  
New Technologies ◽  
Competition Law ◽  
Digital Economy ◽  
Chinese Investment ◽  
Future Developments ◽  
And Control ◽  
Modern Era

This chapter looks back upon the modern era and speculates on future developments. As a modern competition statue, the Commerce Act 1986 stands up well in both substance and form and, overall, can be adjudged to be a success. The courts have battled valiantly to determine often complex disputes in a way that is mostly in harmony with the Act’s objective. A respectable body of antitrust jurisprudence has accumulated in just over three decades. Some challenges faced by NZ competition policy designers and enforcement agencies are generic in nature, being issues facing all antitrust jurisdictions. Common challenges include: (a) greater harmonization of competition law internationally and increased co-operation between enforcement authorities; (b) the challenge posed by the digital economy and new technologies; (c) a renewed concern with “fairness” and socio-political considerations, and; (d) inclusion of new factors such as environmental impacts. Other matters are more specific to New Zealand and include: (i) the response to greater Chinese investment and control (Sinicization) of the economy, and; (ii) the possible accommodation of indigenous Maori business enterprises.

scholarly journals "Pay for Delay": Legitimate Conduct to Defend Valid Patent Rights or Anticompetitive Behaviour?

2018 ◽  
Vol 49 (1) ◽  
pp. 25
Author(s):  
Molly Anning
Keyword(s):  
New Zealand ◽  
Competition Law ◽  
The United States ◽  
Patent Litigation ◽  
The European Union ◽  
Legitimate Business ◽  
Patent Rights ◽  
Considerable Debate ◽  
Business Response ◽  
Union Competition

Originator and generic drug manufacturers frequently settle patent litigation on terms that include a payment to the generic manufacturer in return for the generic to delay entry into the market. These reverse-payment settlements extend the originator's market exclusivity and can amount to anticompetitive divisions of the market. Proponents of such settlements emphasise the reverse-payment as a legitimate business response to the risks associated with litigation. While reverse-payment settlements have raised considerable debate in the pharmaceutical field in both the United States and the European Union, competition authorities in New Zealand are yet to address this issue. Against this background, this article seeks to analyse the compatibility of such settlements with New Zealand competition law, in particular with ss 27 and 36 of the Commerce Act 1986. Given the diversity of such agreements, it is unclear whether New Zealand competition law is adequate to curtail reverse-payment settlements.

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