The characterisation of conduct under Section 46 of the Trade Practices Act

Corones, Stephen G. (2002) The characterisation of conduct under Section 46 of the Trade Practices Act. Australian Business Law Review, 30(6), pp. 409-422.

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While there is broad agreement among competition lawyers and economists that a monopolist should be free to compete and defend its position against would-be competitors, there is disagreement about how to distinguish between monopolistic practices and legitimate competitive conduct by firms with substantial market power. This article argues that in characterising conduct either as a taking advantage of market power or as legitimate competitive conduct, attention should focus on the effect of that conduct on competition, rather than on the subjective purpose or intent behind it. In characterising conduct it is also helpful to consider whether the impugned conduct has a business rationale or justification. If a business rationale or justification is put forward, the court must assess whether it can be justified objectively, for example, in terms of greater efficiency or enhanced consumer appeal. This article is based on a paper presented at the Law Council of Australia, Trade Practices Workshop, 23-25 August 2002.

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ID Code: 9941
Item Type: Journal Article
Refereed: Yes
Additional Information: For more information, please refer to the journal's website (see hypertext link) or contact the author.
ISSN: 0310-1053
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2002 Thomson Legal and Regulatory
Deposited On: 04 Oct 2007 00:00
Last Modified: 17 Sep 2010 01:32

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