Competition Law

Australian Competition Law and Policy Discussion

Posts Tagged ‘competition’

Harper Review in full swing

Posted by Julie Clarke on 2 July 2014

The Harper Review (Competition Policy Review) is in full swing.  The wide ranging Issues Paper has led to an equally wide ranging set of submissions (currently standing at 236 publicly released).  I have begun to summarise and collate them here (the Review site keeps changing the URL on the submissions page which is most unhelpful).  For the most part they are not an impressive bunch – plenty of self interest, industry-specific requests/recommendations and lots of supermarket bashing (sometimes thoughtful and measured; often not), but there are exceptions.  So far (and noting that I have not read all of the latest 74 submissions released last Friday) they can be classified into:

  • broad policy submissions, often referencing particular industry-specific competition issues or excess regulatory
  • submissions on secondary boycotts (many submissions arguing to retain exceptions relating to environmental issues and consumer welfare and several employee groups arguing that they should extend to protect secondary industrial action)
  • shipping submissions (to retain Part X)
  • consumer law submissions (mixed bunch; many to extend unfair terms laws to small business – several opposed to such a move as well as broader submissions on unconscionable conduct and other consumer laws)
  • IP exemptions (lots of submissions with mixed bag for/against retaining s 51 exemption (eg CHOICE against and Australian Copyright Council for) and more discussing parallel imports and international price discrimination and a few arguing for a ‘fair use’ exemption to copyright laws)
  • Part IV CCA discussion (relatively few submissions discuss Pt IV issues)
    • cartels (several calls for simplification and JV clarification; see, eg, Beaton-Wells and Fisse)
    • price signalling (mainly to repeal; some suggest expand industry wide (eg, ACCC))
    • misuse of market power (largely around effects test; some for (like ACCC); other opposed; some to scrap Birdsville (worth a try – but compare Aust Dairy Farmers Ltd); some for divestiture powers in cases of MMP contravention)
    • mergers (a few on creeping acquisition laws – grocery sector focus; a few on notification process.  See in particular Herbert Smith Freehills focusing exclusively on mergers)
    • exclusive dealing – third line forcing (for removal of per se ban – even the ACCC is seeking competition test)
    • price discrimination (some recommend re-introduce/some oppose – but not much here – main focus on international price discrimination)
    • RPM (some to remove per se ban; some to retain (eg ACCC); Minter Ellison goes further)
  • Access (mixed bag)
  • Powers and functions of ACCC (most want to keep ACCC in tact – no comp/consumer etc split; some call for more powers; some call for market studies and ex post review powers/obligations; some discussion of s 155 powers (ACCC want extended; others critical of breadth of s 155)
  • Government and competitive neutrality (mixed bag)

Of those released so far the ACCC’s 145 page submission (view on ACCC website), which it released on 25 June, has probably received the most attention.  For a brief overview click here.

More detail will follow once I get a chance to review all the most recent submissions.  However, based on the scope and diversity of the submissions released so far, I don’t envy the Panel their task!

Posted in Competition Policy | Tagged: , , , | Leave a Comment »

Price signalling bill introduced

Posted by Julie Clarke on 22 November 2010

Shadow Minister for Competition, Mr Bruce Billson, this morning presented the Competition and Consumer (Price Signalling) Amendment Bill 2010 at 10.26am. An explanatory memorandum was presented and statement made.  The Bill was read for a first time at 10.37am.

Although promoted as a response to concerns about banking competition, it is not limited to any particular sector of the economy. The explanatory memorandum states:

This Coalition Private Member’s Bill seeks to establish a new head of power under which the Australian Competition and Consumer Commission (ACCC) would be able to investigate and seek penalties for ‘price signalling’ that produces anti-competitive effects in the Australian market, to the detriment of consumers.

Price signalling is essentially defined in the bill as communication of price-related information to a competitor for purpose of encouraging the competitor to vary supply or acquisition prices in circumstances where that communication has, or is likely to have, the effect of substantially lessening competition.

The new provision would be contained in Division 2 of Part IV of the TPA and would not be subject to the new criminal regime applicable to some forms of cartel conduct.  The provision would be in the form of a new s 45A (filling the gap left by the repeal of the price fixing provision last year).  It would provide, in part:

Prohibition of price signalling

(1)    A corporation must not engage in price signalling.

(2)    For this section, a corporation engages in price signalling if:

(a)    it communicates price-related information to a competitor; and

(b)    it does so for the purpose of inducing or encouraging the competitor to vary the price at which it supplies or acquires, offers to supply or acquire, or proposes to supply or acquire, goods or services; and

(c)    the communication of that information has, or is likely to have, the effect of substantially lessening competition in the market for those goods or services, or in another market.

Establishing the purpose of a communication

(3)    Without in any way limiting the manner in which the purpose referred to in paragraph (2)(b) may be established, a corporation may be taken to have communicated price-related information to a competitor even if, after all of the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation, or of any other person, or from other relevant circumstances.

Several more sub-sections follow which define various terms. In particular, it captures public and private communications, including those made by way of public announcement. Importantly, however, transmissions or re-transmissions of price-related information that is already in the public domain is excluded, as are communications required by law.

The bill is more modest than had been feared by some.  Importantly, it applies only to price signalling when substantial lessening of competition flowing from that conduct can be established – this is not an easy threshold to meet – and requires a purpose of inducing a competitor to alter prices.  Although that purpose may be inferred, it must still be established in each case.  The exclusions noted above will also limit its scope.

Although it is suggested that there may be better or more effective methods of capturing anti-competitive communications between competitors (if such a law is required – and there is some argument that it is following the narrow interpretation of the word ‘understanding’ in the petrol cases – then addressing that issue directly rather than creating yet another untested provision would seem to be the preferred course of action), for a law directed toward “price signalling”, the proposed bill would seem to strike the balance appropriately between identifying that conduct likely to cause genuine anti-competitive concern and be an appropriate focus for legislative intervention, and avoiding casting the net too wide and thereby risking a series of unintended consequences (for example, a per se ban would have stifled even pro-competitive public price communications).

That said, if passed, the bill is unlikely to have an earth-shattering impact – proof of anti-competitive effect will be very difficult.

Posted in Cartels, Competition Policy, Legislation | Tagged: , , , | Leave a Comment »

Competition law journals lose out in ARC journal rankings

Posted by Julie Clarke on 29 January 2009

The ARC has accepted the ranking of law journals proposed (reluctantly) by the Council of Australian Law Deans and it’s not good news for competition law academics – particularly if your research is focused on domestic competition law.  With a top ranking of A+ and a bottom ranking of C, here is how the key business and competition law journals fared (Australian journals appear in red and the more general business law journals (I have only included a few) in green):

A+

Nope, nothing here …

A

American Business Law Journal

Antitrust Law Journal

Journal Of Business Law

B

Australian Business Law Review (seriously!)

Competition and Consumer Law Journal

European Competition Law Review

International Review of Intellectual Property and Competition Law

Journal of Competition Law and Economics

World Competition: Law and Economics Review

C

(842 journals in total get this ranking)

Antitrust

Antitrust Bulletin

Antitrust Law and Economics Review

Australian and New Zealand Trade Practices Law Bulletin

Business Law Review

Business Lawyer

Competition Law Journal

Competition Law Review

Contract Law Journal (my other passion …)

European Business Law Review

European Competition Journal

Global Competition Review

International Business Law Journal

International Business Lawyer

Trade Practices Law Journal (yes, publishing here now ranked just as highly as publishing in the ANZTP Bulletin)

————–

The generalist journal rankings appear slightly less contentious (although seriously, Australian Law Review and Australian Bar Review both get a C ranking?) but discipline specific journals seem to have been pulled from a hat (a lucky hat for some – rejoice if your research interests involve feminist, tax or even property law (human rights and philosophy also fare well)).

I particularly enjoyed the comment of one UK professor who declined involvement in the ranking process, who concluded that the list led him to admire CALD’s “collective willingness to make enemies”.

Nevertheless it seems we are stuck with it.  The consequence must be that instead of publishing in Australian professional journals likely to have the most impact on law and policy in Australia, competition academics must look primarily to US or European journals if they wish their research to have any value with their Institution or the Australian Research Council; to do this requires a shift in focus domestic issues to international or comparative issues.  This is clearly valuable – to a degree – but given the wave of competition reform we are currently experiencing in this country, any arbitrary ranking which pushes our focus from research into appropriate domestic competition policy should be discouraged.

Alternatively, of course, we can aim for the generalist university journals; most of the A+ journals are US or European and would not publish Australian competition law articles; in Australia we only really have the Melbourne Uni Law Review, Sydney Law Review or Uni of NSW Law Journal if we want a top ranking.  If prepared to settle for an A there’s ONE other Australian university journal (plenty of foreign ones though) we can add to the list: the Monash Uni Law Review.  Coming in with a B ranking we can aim for a few more Australian law journals (inc two Go8 Uni journals): the Adelaide Law Review, Flinders Journal of Law Reform, the Griffith Law Review, the University of Queensland Law Journal, the University of Tasmania Law Review and the University of WA Law Review.  Every other generalist Australian university law journal limps in level C, if at all.

There are some brilliant articles in the level C journals (and some poor ones in the A+’s).  It’s a bit like equating a world renowned professor at a small or newer university (which might be favoured for location, size, speciality etc) with a first year associate lecturer at one of the leading – old – universities merely on the basis of their employer without any reference to the individual.  It’s depressing.  It’s discouraging.  It’s simply wrong.

See also ‘Ire of the Beholder‘ by Margaret Thornton published in the Australian before the release of the final rankings.  See also ‘ARC rankings poor on law‘.

Posted in Research | Tagged: , , , | 1 Comment »

 
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