This course seeks to foster an understanding of the policy, statutory, economic, and international dimensions of competition law and policy in New Zealand.
Competition law (or antitrust law) aims to protect and promote competition among market participants by applying general rules on a case-by-case basis which prohibit market conduct that might undermine the competitive process. Competition law is distinguished from many other laws and government measures that impact market competition in one way or another, including by restricting, distorting, regulating, creating, or protecting competition. These fall outside of the ambit of the course.
The appropriate objective and approach to competition law has always been contested. In recent decades, competition law was typically seen as having the objective of promoting efficiency or consumer welfare. In the US, however, the post Neo-Brandeis movement, which seeks to return antitrust to its more interventionist past, gained positions of influence in the Biden administration. It is unclear whether or not the movement will have a lasting impact.
Significant, but not radical, changes to competition law in New Zealand have occurred in recent years, including a new test for single-firm anticompetitive conduct and additional rules that restrict competition for covenants on land. In 2024, the Commerce Commission declined to grant clearance for two mergers - the first since 2018. Competition studies into fuel, building supplies, groceries, and banking conducted by the Commerce Commission under Part A of the Commerce Act has lead to industry-specific regulations, e.g. the Grocery Industry Competition Act 2023.
Competition law is heavily influenced and animated by economics and economists. An understanding of the subject requires some appreciation of the economic ideas that guide the application of the law. The course examines the law and economics of restrictive business practices and mergers under the Commerce Act. No prior knowledge of economics is assumed or required.
Topics covered:
- Objective of competition law
- Basic competition economics
- Market definition, the assessment of market power and conditions of entry, and competition tests
- Hardcore cartels and the treatment of tacit collusion
- Joint ventures and cooperation between competitors and other agreements that may substantially lessen competition
- Unilateral misuse of market power, such as predatory pricing, bundling and tying, and refusals to deal
- The assessment of mergers that substantially lessen competition, including mergers that may better facilitate coordination between competitors
- The relationship between competition law and innovation, intellectual property law, and information technology
- The application of the public benefit test and the review of the authorisation process
The course will familiarise you with a selection of New Zealand and Australian cases and Commerce Commission determinations. Where useful, we also compare and assess New Zealand law against the position in the United States and Europe.
We will not cover the price control provisions in Part 4 of the Commerce Act nor the industry-specific regulations applied to the dairy, electricity, or telecommunications industries.