Is the adversary process appropriate in restrictive trade practices cases?

Article Abstract:

Litigation resulting from attempts by Davids Ltd., a grocery wholesaler, to acquire independent grocery retailers in Australia addressed issues of market definition and the use of expert testimony. In one case, the Tribunal found that a single market existed for grocery products in Australia, contrary to the target's assertion that chains and independents were separate economic markets. The Tribunal's rejection of the findings of Davids' economics experts suggests that a court-appointed fact-finding expert may be more productive than adversarial use of experts.

Cases, Evidence, Expert, Expert evidence, Restraint of trade

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The strategic approach to merger enforcement by the ACCC

Article Abstract:

The Australian Competition and Consumer Commission (ACCC) became the sole controller over mergers when section 50 of the Trade Practices Act 1974 was amended in 1992, eliminating the private right to injunctive relief. Since then, the ACCC has used both structuralist and strategic approaches when deciding if a merger would result in less competition. Section 50 should be amended again to restore the right to injunctive relief. This would allow the ACCC's decisions to be reviewed by the courts.

Practice, Injunctions, Australia. Competition and Consumer Commission

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The revised ACCC merger guidelines

Article Abstract:

The Australian Competition and Consumer Commission published revised merger guidelines in 1992, referring to the section 50(1) addition to the 1974 Trade Practices Act. The guidelines cover market definition, concentration, import competition, lessened competition, efficiencies and public benefits. Any Australian business considering a merger should study these guidelines.

Interpretation and construction, Commercial law

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