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Market Power And Counterfactuals In New Zealand Competition Law

Author

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  • Cento Veljanovski

Abstract

This article reviews recent decisions and controversies surrounding the counterfactual test under section 36 of the New Zealand Commerce Act 1986. In 2010, the New Zealand Supreme Court in 0867 affirmed the counterfactual as the test to determine whether there has been a “use” of market power (the equivalent of monopolization under the Sherman Act, or abuse of dominance under Article 102 of the TFEU) for a proscribed purpose. The discussion traces the development of the section 36 counterfactual, and concludes that it is flawed and potentially under inclusive. It also compares it to the use of the counterfactual under the identical section 46 of the Australian Competition and Consumer Act 2010, which is used more flexibly.

Suggested Citation

  • Cento Veljanovski, 2013. "Market Power And Counterfactuals In New Zealand Competition Law," Journal of Competition Law and Economics, Oxford University Press, vol. 9(1), pages 171-201.
    • Handle: RePEc:oup:jcomle:v:9:y:2013:i:1:p:171-201.
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    File URL: http://hdl.handle.net/10.1093/joclec/nhs039
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    More about this item

    JEL classification:

    • D4 - Microeconomics - - Market Structure, Pricing, and Design
    • K0 - Law and Economics - - General
    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • L1 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance
    • L4 - Industrial Organization - - Antitrust Issues and Policies
    • L11 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Production, Pricing, and Market Structure; Size Distribution of Firms
    • L12 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Monopoly; Monopolization Strategies
    • L13 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Oligopoly and Other Imperfect Markets
    • K14 - Law and Economics - - Basic Areas of Law - - - Criminal Law
    • L41 - Industrial Organization - - Antitrust Issues and Policies - - - Monopolization; Horizontal Anticompetitive Practices
    • L44 - Industrial Organization - - Antitrust Issues and Policies - - - Antitrust Policy and Public Enterprise, Nonprofit Institutions, and Professional Organizations
    • N60 - Economic History - - Manufacturing and Construction - - - General, International, or Comparative

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