Commerce Commission Research Articles

The Politics and Practice of New Zealand Competition Law

There is a wind of change blowing through global competition law and policy. Four or five years ago, there were signs a front was coming. Progressive commentators were fretting about years of seemingly unchecked market concentration. They were asking whether greater antitrust intervention might soothe rising inequality, prop up wages, and even disband aggregated political power. Some from the vanguard of this movement now occupy the most influential positions in the global antitrust endeavor. In this article, I locate New Zealand’s experience within the international normative debate over the law’s objectives by reference to the country’s modern economic history. And I explain how policy translates into practice at the enforcement coal face in New Zealand. In doing so, I observe that the country’s competition agency, the Commerce Commission, is failing in its duty to investigate and prosecute exclusionary conduct in the jurisdiction.

The Lodge Case and the Misapplication of the Per Se Cartel Provisions of the Commerce Act 1986

An arrangement to fix, control or maintain prices is the classic competition law per se offence, and is deemed to substantially lessen competition under s 30 of the Commerce Act 1986. However, it is currently unclear when arrangements that do not explicitly concern price fall within the ambit of s 30. This article examines the recent Court of Appeal decision in Commerce Commission v Lodge Real Estate Ltd which found that the defendants were liable under the per se offence provisions. It contends that the Court of Appeal took the overseas case law out of context, misunderstood key factual findings made by the High Court at first instance and overlooked important legal and policy considerations. As a result it is argued that Lodge sets an unfortunate precedent that should be overruled or strictly confined to its own facts.

Unilateral Refusals to Supply and the Essential Facilities Doctrine under New Zealand's Competition Law

Refusals to supply are one of the types of behaviour that may constitute an illegal act of monopolisation under competition law. As part of United States refusal to supply law the courts developed the essential facilities doctrine. This requires the owner of a facility which is essential to rivals to provide access to that facility. Courts, in particular the United States Supreme Court, have cast doubt on the doctrine and cut back on liability for unilateral refusals to supply. Conversely New Zealand (and Australian) courts have increased liability for refusals to supply. One case, Commerce Commission v Bay of Plenty Electricity Ltd suggested New Zealand has its own essential facilities doctrine. This article discusses and analyses refusals to supply both legally and economically. It compares United States and Australasian law and shows how New Zealand law is tougher on refusals to supply. It argues that New Zealand has its own version of the essential facilities doctrine – albeit for different reasons than the Bay of Plenty Electricity Court suggested. It shows that sound reasons justify this stance.

Competing Views on Media Mergers: A Comparative Analysis of New Zealand Competition Law

Recent merger activity and academic commentary has renewed public interest in the treatment of media mergers around the world. Yet, it is difficult to formulate robust competition policy for media mergers when there is a fierce divergence in views between businesses and regulators as to the current competitiveness of the media industry. This paper engages with this issue by examining two recent media mergers in New Zealand, the NZME/Fairfax and SKY/Vodafone mergers, which were controversially declined by the Commerce Commission. Through taking a comparative approach with United States antitrust law and how it was applied in the AT&T/Time Warner merger, the paper suggests there are weaknesses in the New Zealand competition law framework and how it is applied. These exacerbate already challenging conditions for New Zealand media firms, faced with tough competition from large international competitors, by limiting their ability to merge and seek economic efficiencies. The paper concludes that Government intervention is required to address these issues in competition policy.

Is the Competition Toolkit Missing Its Torch? The Case for Market Studies

This paper notes that New Zealand's competition authority, the Commerce Commission, does not currently have the explicit power to conduct 'market studies', which are proactive and generally broad-ranging investigations into the workings of a market and which are not triggered by specific complaints of anti-competitive behaviour. For a variety of reasons, this inability to act looks increasingly anomalous, and the competitiveness of New Zealand markets would be better served by widening the scope of the Commission's authority. Importantly, it would also help deter poor policy responses based on mistaken competition concerns.

Sports and competition law: the case of the salary cap in New Zealand rugby union

The legal environment of professional sports in Europe has been recently complemented by regulations adopted by sports federations and professional leagues aiming at preserving fairness in sports competitions and/or the economic viability of this sector (like the salary cap put in place in French professional rugby union from the 2010–2011 season and the UEFA’s financial fair play regulations). No formal decisions have been taken so far by the European Commission and the French competition authority on the compliance of salary cap regulations or other similar regulation tools with competition rules. Given this context, the decisions of the New Zealand’s competition authority (“Commerce Commission”) dealt with in this article are interesting as they relate to the salary cap put in place as from 2006 by the New Zealand Rugby Football Union in the domestic inter-provincial rugby competition. More particularly, the Commerce Commission’s first decision, dated 2 June 2006, is highly interesting as the Commerce Commission carried out an in-depth legal and economic analysis to authorise the entry into effect of the salary cap pursuant to competition rules applicable in New Zealand. While these decisions should be analysed under the specific sporting and legal background of New Zealand, it is interesting to investigate what could be their practical and legal impact in Europe.

Institutional and Ad Hoc Perspectives on the Temporal Conflict of Arbitral Rules

The question of which version of arbitration rules applies to arbitration proceedings remains relevant to contemporary practice in the light of recent, conflicting domestic court decisions as well as recent and forthcoming revisions to major sets of arbitral rules, notably those of the International Chamber of Commerce (ICC) and United Nations Commission on International Trade Law (UNCITRAL). Should arbitral tribunals and institutions apply the arbitral rules in force at the time of the conclusion of the arbitration agreement, or that in force at the time of commencing arbitration? This article examines both the theoretical and practical issues involved in answering that question, taking account of historical and recent arbitral and domestic case law, and the different approach taken in ad hoc arbitration vis-à-vis institutional arbitration.

Context and change in management accounting and control systems: a case study of Telecom Fiji Limited

This thesis aims to contribute to research in management accounting and control systems (MACS) in a developing country context: that of Fiji. It seeks to gain a theoretical understanding of how MACS reflect the social and political contexts in which they operate by using a case study of Telecom Fiji Limited (a major supplier of telephone communications in Fiji). The definition of MACS for the purpose of the thesis is broad- a social constructivist perspective is adopted in which systems are used to align employee behaviour with organisational objectives and to assist external relationships (with the State, Commerce Commission, aid agencies and customers). The thesis draws on institutional theory while raising questions as to how to refine and extend institutional theory. This theory has often been associated with institutional embeddedness (stability). The social constructivist approach helps to incorporate agency and cultural issues normally missing in conventional applications of institutional theory to accounting change. Telecom Fiji Limited (TFL) was restructured under the Fiji government's public sector reforms. Such reforms were insisted upon by the international financial agencies of the World Bank, the Asian Development Bank and the International Monetary Fund. Under the reform policy, TFL was transformed from a government department into a corporatised organisation and was subsequently privatised. The MACS changes which eventuated helped to change TFL management and employees' interpretive schemes. However, employees resisted initial changes to commercial business routines and it took some years for TFL actors to assimilate commercial practices. While the literature dealing with MACS changes has mostly portrayed changes as occurring with little resistance, MACS changes at TFL took several years to become institutionalised, partly because of cultural and political factors specific to Fiji. The study has practice implications as it shows that management accountants can act as institutional entrepreneurs in organisations, shaping new accounting technologies in reformed entities, and changing actors' interpretive schemes. The study has implications for policy makers, consultants and other stakeholders in terms of promoting a need for better understanding of the sensitivity to cultural and political circumstances in Less Developed Countries (LDC's) like Fiji in relation to the introduction of MACS changes. The study has implications for other recently corporatized/ privatised and state-sector organisations in Fiji and elsewhere. It also has implications for other researchers as institutional theory can be refined on the basis of new empirical evidence.

Regulating for the Reliability of Electricity Transmission and Distribution Networks

European Union member states are increasingly treating reliability of transmission and distribution networks as a key issue in the design of their electricity regulatory regimes. This paper analyses the regulatory regimes in the EU (including the 2003 Electricity Directive - Directive 2003/54/EC - and the 2005 Security of Supply Directive - Directive 2005/89/EC) and four EU member states: the United Kingdom, Ireland, Italy and the Netherlands. Those member states have each adopted a comprehensive package of mechanisms that are designed to improve network reliability. The most useful mechanisms that they have developed are reporting and publication obligations, quality standards that are linked to customer compensation schemes, and reliability incentives that are incorporated into tariff regulation. Those mechanisms have been credited with causing substantial reliability improvements, most notably in Italy. This paper uses the lessons from those EU member states to review and evaluate the New Zealand electricity regime. New Zealand currently only has very limited mechanisms addressing reliability. However, two major reforms are in progress. The Commerce Amendment Bill was introduced in March 2008 and will fundamentally reform the price control regime for electricity operators. The Commerce Commission is also reviewing its current 'thresholds' control regime, which contains the details of how the price control system operates. This paper makes recommendations for both of those reforms. It recommends that if New Zealand is serious about wanting to improve reliability then it should adopt some of the successful European mechanisms. In particular, it should enhance its reporting and publication system, improve the reliability incentives that are contained in the current and proposed price control regimes, and seriously consider introducing a quality standards and customer compensation system.

Electricity Regulation in New Zealand: the Early Stages of a New Regime

The electricity industry of New Zealand became subject to formal industry-specific regulation between 2001 and 2005. This article examines the disputes that arose in 2006 in the fields of the project approval of new transmission lines by the Electricity Commission, and the price control of local distribution companies by the Commerce Commission. Also examined are proposals for substantial change in the methods used in price control. The article concludes that the controversy is largely due to the recency of the new regime of regulation, and its difference from the previous regime where there was almost no such regulation. The new regime and the proposals for change will bring the regulation of New Zealand’s electricity industry closer to that of most other countries.

What New Zealand dairy farmers desire from the Government

Discusses the recent trend in the dairy industry towards conglomeration, focusing on the implications for the New Zealand dairy export industry. Describes how a proposed merger of the New Zealand dairy group and Kiwi cooperative dairies (both producer cooperatives) and the Dairy Board (which handled all overseas marketing of New Zealand dairy products) was rejected by the Commerce Commission and discusses the subsequent intervention by the Government in favor of the merger and the formation of a new company, provisionally termed “GlobalCo”. Investigates what dairy farmers desire from the New Zealand Government in the form of legislation and regulation, proposing the following research questions: what are dairy farmers’ perceptions of the dairy merger; how do government regulations affect dairy farmers’ operations; and what are dairy farmers perceptions of government assistance in the industry? Using a holistic‐inductive qualitative study with a sample collected through various contacts in the dairy industry, including farms from the lower half of North Island and all of the South Island, presents findings and outlines implications concerning the government and management at GlobalCo.

Facilitating and Regulating Commerce

This article explores how Sir Ivor Richardson's Court of Appeal approached the facilitation and regulation of commerce in the areas of competition and securities law from 1977 to 2002. The author explores the introduction of key legislation (Commerce Act 1986, Fair Trading Act 1986, Securities Amendment Act 1988, and the Companies Act 1993) alongside the establishment of the Securities Commission and Commerce Commission. The article then discusses how competition law was explored through cases involving the record industry, primary production, telecommunications, and electricity transmission. The Court of Appeal's approach to securities law and economics is also explored. It is concluded that Sir Ivor's impact on law and economics is the realisation that market participants cannot be left unregulated and unrestrained to pursue the maximisation of their own wealth. The above legislation are the principal constraints – day-to-day responsibility and administration being left to the Commissions, while courts would interpret and apply the legislation in individual cases in a manner which reflects the underlying economic and social policies.

Predatory Conduct under the Commerce Act 1986

This article examines the significance of the Court of Appeal's decision in Commerce Commission v Port Nelson Limited. The Court's analysis of predatory pricing, "bundling" and the tug tie is explored. The article concludes that the effect of the Court of Appeal's decision is to significantly widen the scope of section 27 of the Commerce Act. This is contrasted with the restrictive interpretation that recent courts have accorded section 36. The article concludes that court decisions have fundamentally changed the scheme of the Commerce Act 1986.

The evaluation of public benefit and detriment under the commerce act 1986

Under the Commerce Act 1986, whose stated objective is “to promote competition in markets within New Zealand”, an anticompetitive merger or restrictive trade practice may be authorised by the Commerce Commission on public benefit grounds. The purpose of this paper is twofold. Firstly, certain broad categories of frequently claimed benefits and detriments, and their evaluations by the Commission and Courts are assessed in the context of the Williamson merger tradeoff model. Secondly, the approach adopted by the Commission and Courts in balancing benefits and detriments is considered. About 1990 the “income weighting” approach favoured by the Commission was, under the influence of early decisions by the Courts and other factors, supplanted by an “efficiency” approach This new approach was endorsed in the recent review of the Commerce Act. Amendments to the Act to entrench that approach are expected.

Taking the Bitter with the Sweet: Sugar Refiners and the Canadian Regulatory State, 1904–20

IN OCTOBER 1920 the Board of Commerce tried to prop up rapidly falling sugar prices. This decision appeared as a perversion of the agency's mandate to fight the rising cost of living and engulfed the already unpopular board in a controversy it would not survive. The commerce commissioners chose to protect the wrong industry at the v•mng time: the 'sugar barons' traditionally were suspected of price collusion and other Canadian businesses were struggling to survive the autumn 1920 recession. As one leading Nova Scotia merchant explained: 'The refiners, in common with every other business man and industry, must take the bitter with the sweet. '• Protests against the commerce commission's order besieged the already unpopular Union government. The commerce commission was not the only government agency engulfed in a controversy involving sugar refiners. In 1918 the Board of Railway Commissioners, the agency responsible for railway-freight rate regulation, had been accused by Maritime business interests including sugar refiners of mishandling wartime rate changes. The commission, it was contended, had succumbed to pressures from refineries located in Ontario and Quebec and had allowed rate changes to weaken the competitive position of their Maritime competitors, A

USSR Chamber of Commerce and Industry Foreign Trade Arbitration Commission

USSR Chamber of Commerce and Industry Foreign Trade Arbitration Commission

Working with virtually every federal agency

"At ixt one time or another, I expect there's an occasion for the FDA to deal with virtually every other federal agency around," says William Schwemer, assistant associate commissioner, regulatory affairs. Schwemer says that the FDA regularly collaborates with government organizations that are interested in consumer-related problems and that have the resources available to help eradicate them. Some of the federal agencies contacted frequently include the Federal Trade Commission, US Postal Service, Environmental Protection Agency, Occupational Safety and Health Administration, Department of Agriculture, Centers for Disease Control, US Customs Service, branches of the US military, and the National Institutes of Health. Less frequent contacts are made with such agencies as the Department of Commerce, the Securities and Exchange Commission, and the Federeal Bureau of Investigation. In addition, the FDA works with state and local governments, he explains, in conducting product inspections, enforcing regulations, and finding solutions to technical problems. Schwemer

Corporation Gift Approved by Commerce Commission

Previous articleNext article No AccessNotes and CommentsCorporation Gift Approved by Commerce CommissionPDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Social Service Review Volume 34, Number 1Mar., 1960 Article DOIhttps://doi.org/10.1086/640797 Views: 1Total views on this site Copyright 1960 The University of ChicagoPDF download Crossref reports no articles citing this article.