Competition Law

Australian Competition Law and Policy Discussion

Posts Tagged ‘Competition Law’

Competition Law Journal Rankings Revisited

Posted by Julie Clarke on 10 February 2010

The ARC 2010 journal rankings are now out.  Once again our research has been re-classified retrospectively.  Once again, competition law journals fair poorly.  We have two more competition law journals classified as ‘A’, journals’, but both are foreign, with the result that there are now five foreign competition/business law journals with an A ranking and no local journals.  No competition law journals anywhere reach the A+ ranking.  Some have completely disappeared from the list.  For last year’s list see my earlier blog.  Here are the current rankings with changes noted.  (Australian journals appear in green; the list of business journals is not comprehensive):

A+

Nope, nothing here …

A

American Business Law Journal

Antitrust Law Journal

European Competition Law Review (up from a B last year)

Journal Of Business Law

World Competition: Law and Economics Review (up from a B last year)

B

Australian Business Law Review

Competition and Consumer Law Journal

International Review of Intellectual Property and Competition Law

Journal of Competition Law and Economics

C

(the vast majority of all journals are here)

Antitrust Bulletin

Business Law Review

Business Lawyer

Competition Law Journal

European Business Law Review

European Competition Journal

International Business Lawyer

No ranking

These ones seem to have dropped off the list – I can’t find them anyway!

Antitrust

Antitrust Law and Economics Review

Australian and New Zealand Trade Practices Law Bulletin

Competition Law Review

Global Competition Review

International Business Law Journal

Trade Practices Law Journal (this must be a mistake – I am exploring further!)

————–

Re-ranking is both necessary and problematic.  As researchers, our immediate status as ‘research active’ or not is determined by the ranking system and our research  ‘quality’ is also now judged by the quality ranking assigned to the journals in which we publish.  There are many problems with this – esp where the rankings are not static and the discipline areas not fairly represented – in particular, there is a very odd emphasis on publishing in foreign journals (which often means publishing about foreign law rather than concentrating research on our own; this is more of a problem in law which has many jurisdiction-specific quirks than many other areas). I previously written about my feelings regarding the current ranking system.  They have not changed (at least not for the better) following this re-ranking.

FYI, the generalist law journals rankings I’ve previously mentioned remain essentially the same, save that the Australian Law Journal has moved from C to B ranking and the Griffith Law Review has had a miraculous jump from a B ranking to an A+ ranking.

For me, I will start focusing more on comparative law with emphasis on US and European jurisdictions rather than focusing on some of the real problems we have with our own domestic competition laws …

Posted in Research | Tagged: , , , , | 2 Comments »

Market definition in Australia

Posted by Julie Clarke on 20 October 2009

Earlier this month (on 2 October 2009) the Full Federal Court dismissed Singapore Airlines’ appeal against a decision of Justice Middleton which challenged ACCC investigation powers under s 155. A key issue was whether ‘routes between two points wholly outside Australia could be within a “market in Australia”.’ In rejecting the appeal, the Full Federal Court held that ‘prices fixed for legs of a journey which take place wholly outside Australia may ultimately affect competition in a market in Australia’. ACCC Chairman, Mr Graeme Samuel, noted that the decision was crucial in that it

‘confirms that the Act is able to reach cartels formed outside Australia affecting Australians. The Full Federal Court has also confirmed that the ACCC is fully able to investigate conduct occurring overseas. Here we are investigating a worldwide market for air cargo services.’  See ACCC Press Release.

The decision is a positive one. The definition of market in s 4E of the Trade Practices Act as one within Australia is artificial and distorting in cases where the reality is that the market is global or, at least, transnational.  It is not a problem that appears to arise in other jurisdictions which more sensibly focus on local effect on competition without the artificial market restriction.  Confirmation that a global market might be classified as a ‘market in Australia’, even where relevant conduct occurs entirely outside Australia is a positive step – and consistent with foreign approaches to the application of competition laws to conduct occurring abroad – but it is not a complete panacea for the problems generated by our restrictive market definition.

The last time this was officially reviewed was during the course of the Dawson Review of the competition law provisions of the Act which addressed it very briefly in the context of mergers (in which the definition of market is defined as a substantial market for goods or services in Australia, a State, a Territory or a Region of Australia: s 50(6)).  The Report concluded that this definition is not too restrictive and that it allows regard to be paid to foreign competition.  However it entirely glossed over the point that a market which is transnational cannot be.  I briefly discussed this in ‘The Dawson Report and Merger Regulation’ (2003) 8 Deakin Law Review (pages 59-61).   See also submission by Dr Maureen Brunt – ‘Market Definition in the Trade Practices Act: the Challenge of Globalization’.

The issue has arisen in a number of cases recently, with judges taking vastly different approaches to the meaning of market in the TPA.  The importance of defining market in a realistic, rather than artificial, way has increased with the globalisation of markets and will continue to do so as more conduct occurring outside our territorial shores impacts on our domestic competitive environment.  It is time to revisit the issue of market definition for purposes of the competition law provisions of the TPA.

Posted in Cartels, Competition Policy, Evidentiary Issues, Jurisdiction, Legislation (TPA/CCA) | Tagged: , , , , , , | Leave a Comment »

Emerson: Labor is the Party of Competition

Posted by Julie Clarke on 2 September 2009

On Monday the Hon Dr Craig Emerson MP, Minister for Competition (among other things), delivered a speech tot he Committee for Economic Development of Australia outlining Labor’s approach to competition and consumer policy.

The discussion of competition policy is very good.  In the context of competition law and proposed amendments Emerson discusses the ‘Blacktown Amendment’, proposed by Senator’s Joyce and Xenophon, which proposes to make unlawful the selling of the same product at different prices within a 35km radius.  Emerson is highly critical of the bill, claiming Adam Smith would have described it as ‘a conspiracy against the poor’ and suggesting the description would not ‘be too far off the mark’.  The speech is highly critical of protectionist policies generally and notes that policy proposals ‘that are pro-competitive will get a sympathetic hearing [from the Government] while those that are anti-competitive will be listened to with great precaution and examined with the most suspicious attention’.

Emerson also notes, in the context of competition policy, the Government proposals to ‘improve the timeliness and effectiveness of decision-making process under the national access regime …’

No mention is made of the current reviews into creeping acquisitions and the meaning of ‘understanding’.

Despite the title of the speech, Emerson also spends some time discussing current and future reforms to Consumer law, including the unfair terms provisions, the current review into the unconscionable conduct provisions of the TPA and the proposed additional powers for the ACCC and ASIC to seek civil penalties under the Australian Consumer Law.

Worth a read.

View speech.

Posted in Competition Policy, Legislation (TPA/CCA), Speeches | Tagged: , , , , | Leave a Comment »

New issue of CCLJ

Posted by Julie Clarke on 13 August 2009

The latest Competition and Consumer Law Journal is out (Vol 17(1)) containing some interesting items on current developments in the law, including:

  • In hope of convergence — A regional perspective on competition law (Chief Justice R S French)
  • Signalling, collusion and s 45 of the Trade Practices Act (Rhonda L Smith, Arlen Duke and David K Round)
  • The contract requirement for the joint venture exceptions under ss 44ZZRO and 44ZZRP of the Trade Practices Act (Brent Fisse)
  • Cartel damages and the passing on defence: A comparative analysis (Graeme Edgerton)

For those interested in everything TPA related, there’s also an interesting article on the scope of s 51A (representations about the future) in the context of the current review of Australian Consumer Law.

  • The 2009 review of Australian consumer law — An opportunity to reconsider and clarify the rationale and scope of s 51A of the Trade Practices Act (Aviva Freilich and Eileen Webb)

Posted in Cartels, Competition Policy, Legislation (TPA/CCA) | Tagged: , , | Leave a Comment »

Trade Practices Act – Time to Split it Up?

Posted by Julie Clarke on 23 July 2009

The Trade Practices Act (TPA) is too big and too complicated. The Government has introduced phase I of their two-phase plan to implement a new Australian Consumer Law which will bulk up the Act even further (the Bill alone runs to 84 pages).  The adds to the additional 90 pages of statutory text generated by the recent passage of the criminal cartel act.  It cannot go on … the annotated acts are bursting at their seems.

So what can be done to stem the flow of dense legislative supplements to what was once a neat little Act (the original 1974 Act comprised a little over 38,000 words of text; the current consolidation contains more than 305,000 words)?  The answer is probably nothing.  It is unlikely there will be any substantive legislative repeals or genuine attempts at simplification, although this would be desirable, and the problem is likely to get worse with current inquiries into unconscionable conduct, creeping acquisitions and the meaning of ‘understanding’ in part IV of the Act likely to generate more legislative content in the near future.  Another answer is needed.

Chris Bowen MP, when he was then Minister for Competition Policy and Consumer Affairs, announced that the Government would change the name of the TPA to the ‘Australian Competition and Consumer Act’ while in the process of implementing the Australian Consumer Law.  It was though that somehow this would ‘better reflect its purposes of promoting competition and empowering consumers’.  It is believed the Govenment is still intent on this name change.  Although, as a bit of a traditionalist, it hurts me to part with the term ‘Trade Practices Act’, of which I am now very fond, the proposed name change might present an opporunity.  While in the process of changing the Act’s name why not split it up?  Let’s divide it into a consumer act (‘Australian Consumer Act’ perhaps) and a competition act (‘Australian Competition Act’?).  These are two separate fields of law and policy (even if there may be some overlapping objectives) – they need not be married together in this legislative jungle.

While we’re in the process of splitting up the Act let’s also re-number it.  A multitude of additions and alterations over the years has led to an absurd numbering system.  The last part of the Act is Part XIII.  You might deduce from this that the Act has 13 parts.  You would be wrong; it in fact has 28 parts and a schedule.  Parts include IIIAA, XIAA, XIB etc.  All very logical!  The section numbering is even better. The new cartel laws begin with section 44ZZRA and end with section 44ZZRV.  Why?  Because the government wanted to slip them in between sections 44ZZR and 45.  Again, very logical and easy to follow for business trying to adhere to the law – and this is not the worst of it. This bizarre numbering is scattered throughout.  We have s 51ACAA (I kid you not), s 44AAGA, s 75AZQ, s 87CAA, s 95AZEA (seriously!), s 10.01 (yes, in Part X the numbering system completely changes – we go from s 119 to s 10.01 – 10.91 then we jump to s 150A at the start of Part XIA – there are no sections 120-150 in the Act) and my personal favorite, s 151BUAAA.  It is simply absurd.

So, with the re-naming and and of the Act we can also begin a re-numbering system.  Nobody really loves s 151BUAAA or will be sorry to see it go.  Lets put what we want in the Act (or Acts), then start the renumbering of parts and sections from scratch.  No doubt future amendments will mess this up a little, but the Act cannot continue on it’s current numbering trajectory.

There are, of course, more serious issues than poor structure and numbering of the Act.  It is highly complex and, as a result, inaccessible for many of those parties to whom it is directed (consumers and business).  But a simplified structure (one that clearly separates consumer and competition legislation and policy) and a logical numbering system would, at the very least, be a good start.

Posted in Competition Policy, Legislation, Legislation (TPA/CCA) | Tagged: , , | 1 Comment »

Criminal cartel bill passes Senate

Posted by Julie Clarke on 16 June 2009

The Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 passed the Senate last night with amendments relating to the Joint Venture exemption.  For discussion of the quality of these amendments see Fisse, ‘The Contract Requirement for the Joint Venture Exceptions Under Sections 44ZZRO and 44ZZRP of the Cartel Bill’ (Draft, 6 June 2009) (PDF)

There was little debate of any substance in the Senate leading to the passage of the bill, the Senate accepting the Senate Economic Committee Report and Recommendations, without reference to the Reports many inadequacies!  View Senate Hansard (from pp 108-116)

See also press release by the new competition minister, Dr Craig Emerson (incidently, today the Treasury Ministers Portal finally added Dr Emerson to the their list of Treasury Ministers; but the web site it directs you to – Emerson’s Ministerial Home Page – still makes no mention of the fact that he is now Minister for Competition and Consumer Affairs).

UPDATE: Amendments have been agreed to by House.  Final bill as agreed to both houses can be viewed here.  I will produce a separate post regarding the final passage of the bill which now waits assent – the criminal provisions will become operative 28 days thereafter.

Posted in Cartels, Criminal Penalties, Legislation | Tagged: , , | Leave a Comment »

 
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