Tuesday, June 2, 2009
Posted by D. Daniel Sokol
ABSTRACT: New Zealand’s monopolisation prohibition — s 36 of the Commerce Act 1986 — is not an effective weapon in the antitrust armoury. Proving a violation of s 36 is most difficult as the paucity of successful cases illustrates. Based on a laudable concern that efficient, innovative conduct might be curtailed, the New Zealand courts have overcompensated by promulgating a strict counterfactual test for ‘taking advantage of’ that thwarts effective prosecution of monopolising conduct. This article traces the reasons for this unduly lenient approach and puts forward several suggested solutions — including a multi-stage, burden-shifting, composite test — aimed at reviving s 36 as an effective enforcement tool against single-firm conduct that curtails effective competition.