Current Issues in Competition Law – is a 2-volume collection exploring the statutory regime regulating competition and restrictive trade practices.
Over the past 30 years, the Australian statutory regime regulating competition and restrictive trade practices has been the subject of significant reform. The evolution has been driven by the legislative, executive, and judicial branches of government. In this respect, debates – some familiar, others more novel – continue. These debates are occurring in the profession, the academy, and even in the media and the broader community. After all, the harms which Australian competition law seeks to prevent, and redress, have significant, direct impacts across society, from sophisticated multinationals to the everyday consumer. Meanwhile, the regulator in Australia, the Australian Competition and Consumer Commission, is notoriously active in promoting and enforcing (including testing the limits of) the prohibitions on restrictive trade practices.
The collection is essential reading for those called on to determine competition matters, lawyers practising in competition and commercial law, and those teaching and researching the subject.
The first volume, Context and Interpretation, is divided into three parts. The first considers the historical and theoretical background underpinning Australia’s competition law; the second addresses questions of statutory interpretation common throughout, and specific to, this jurisprudence; and, the third examines the application of this law to new and emerging markets. The chapters provide perspectives from the judiciary, the regulator, the practising profession, and the academy, including a foreword by the Honourable Chief Justice Allsop AO.
The second volume, Practice and Perspectives, considers Part IV of the statutory regime regulating, among other things, cartel conduct, anti-competitive contracts and collusive conduct, misuse of market power, and mergers. The 11 essays in this volume examining many of the key questions and debates in respect of each of the prohibitions. It includes perspectives from the judiciary, the regulator, the practising profession, and the academy, including a foreword by the Honourable Justice Nye Perram.
This collection was generously supported by the Ross Parsons Centre, The University of Sydney Law School.
Volume I – Context and Interpretation
Chief Justice Allsop
Michael Gvozdeonvic and Stephen Puttick
Part I Background, History, and Theory
Chapter 1. The Courts in Competition Law
Hon Robert French AC
Chapter 2. The Continuing Journey to Protect Competition: The ACCC’s Perspectives on Part IV
Rod Sims and Graeme Woodbridge
Chapter 3. An Economic Perspective on Part IV
Chapter 4. Competition Law at the Limit of Common Law and Statute
Part II Statutory Interpretation in Competition Law
Chapter 5. Statutory Interpretation from Visy to Today
Perry Herzfeld SC
Chapter 6. A Likely Story: Future Counterfactuals in Competition Law
Ruth C A Higgins SC
Chapter 7. Defining and Determining a ‘Substantial Lessening of Competition’
Justice Mark Moshinsky
Chapter 8. What is the ‘Market’?
Rhonda L Smith and Arlen Duke
Part III Emerging Markets
Chapter 9. Economic Theory, Competition Regulation, and Digital Markets
Chapter 10. Digital Platform Acquisitions: Anti-Competitive Mergers or Misuses of Market Power
Dave Poddar, Michael Gvozdenovic, and Joshua Sinn
Chapter 11. Recent Developments in ACCC Review of Media Mergers
Felicity McMahon and Jacqueline Downes
Chapter 12. Emerging Issues in Mergers in Infrastructure Markets
Belinda Harvey and Stephanie Phan
Volume II – Practice and Perspectives
Justice Nye Perram
Michael Gvozdenovic and Stephen Puttick
Part I Cartels, ‘Contracts, Arrangements and Understandings’, and Concerted Practices
Chapter 1. The Criminalisation of Corporate and Cartel Conduct
Justice Anthony Payne and Natasha Naidu
Chapter 2. Joint Venture Defence: The Cascade Decisions and Implications
Chapter 3. Immunity Policies: Uncertainty, Irregularity, and Effectiveness
Deniz Kayis and Rob Nicholls
Chapter 4. Cartel Damages: Quantification, Uncertainties, and Future Approaches
Part II Misuse of Market Power
Chapter 5. Digital Platforms, Emerging Markets, and Section 46
Chapter 6. Fact-Value Complexes in the Old And New Versions of Section 46
Philip Williams AM
Chapter 7. An Alternative Heuristic Test For Misuse of Market Power
Part III Mergers and Acquisitions
Chapter 8. Section 50: Should The Burden of Proof Be Shifted?
Justice Michael O’Bryan
Chapter 9. A Mandatory and Suspensory Merger Notification System for Australia
Allan Fels AO, Annalisa Heger, and George Cunningham
Chapter 10. Undertakings: Constitutionality, Commerciality, and Other Considerations
Justin Gleeson SC And Christopher Tran
Chapter 11. Evaluating Evidence in Contested Merger Proceedings
This collection is a must-read for competition and regulatory practitioners. Prior to formally reviewing the collection for this journal, I had scoured the pages of several chapters across both volumes for my own practical purposes. Chapters will no doubt end up on essential reading lists for competition law electives. Chief Justice Allsop suggests in the foreword to the volume that competition law exists to benefit all members of the public – I commend the collection to all. Read full review…
Nicholas Felstead, Lawyer, Melbourne (2023) 51 ABLR 110
[T]his collection provides valuable insight and stimulation for the development of thinking in the field. Read full review…
Michael Hodge KC, BarNews, Summer 2022