The Metaphysics of Market Power

The Zero-sum Competition and Market Manipulation Approach
Erscheinungsjahr 2020
ISBN: 978-1-5099-4577-1
Verlag: Hart Publishing

Buch, Englisch, 328 Seiten, Paperback, Format (B × H): 156 mm x 234 mm, Gewicht: 458 g

Australian competition law has just emerged from a significant period of reform which has seen controversial changes to the legal test to distinguish between normal competitive conduct and conduct that should be condemned. The controversy continues, arguably because the traditional legal conception of market power does not provide a useful standard in real world markets. This important new book offers a radical interpretation of market power, based on the power to manipulate. Seeing it in this way allows for positive and normative standards within which to frame a legal theory of liability for misuse of that power. The book provides suggestions to improve the forensic assessment of conduct that should be condemned as misuse of market power.

Autoren/Hrsg.

Raitt, George

Fachgebiete

• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein

Inhaltsverzeichnis

I. The Problem

II. Australia's Reform Process

III. The Proposed Market Manipulation Approach

IV. Implications of the Study beyond the Present Scope

V. The Problematic Role of Efficiency

VI. Differing Views of the World

VII. Economic Models and the Paradigm of Competition

VIII. The Overseas Experience

IX. What Difference Will Market Manipulation Theory Make?

X. Application to the Digital Economy

XI. Outline of the Chapters

XII. Effective Date of Law

PART I
THE THEORETICAL FRAMEWORK
1. Market Power in Economics and Law

I. Introduction

II. Policy Objectives and Concepts of Efficiency

III. Economic Models and the Paradigm of Competition

IV. Market Manipulation Laws in Securities Markets

V. Thought Experiment: Incumbent Response to New Entry

VI. Norms in Zero-Sum Competition

VII. Zero-Sum Competition, Market Manipulation and Efficiency

VIII. Conclusion

2. The Mischief and Australia's Institutional Response

I. Introduction

II. The Continuing Influence of the SCP Approach in Australia

III. Australia's Institutional Division of Functions between Courts and Agencies

IV. Institutional Arrangements in the EU and the US: Court-Centred or Agency-Centred?

V. Conclusion

3. Competition and Efficiency Effects in Europe, North America and Australia

I. Introduction

II. The Current Australian Effects Test Outside Section 46

III. The Harper Review Effects Test and the Role of Efficiency Effects
IV. EU Abuse of Dominance and Defences

V. US Monopolisation and Defences

VI. Efficiency in the Law of Securities Market Manipulation

VII. Adapting Efficiency as a Legal Concept

VIII. Zero-Sum Competition, Market Manipulation and Efficiency

IX. Conclusion

PART II
TESTING MARKET MANIPULATION AND EFFICIENCY APPROACHES
Introduction
4. Refusal to Deal and Margin Squeeze

I. Introduction

II. Queensland Wire: Factual Matrix

III. Gaps in the Factual Matrix

IV. Queensland Wire under Harper Section 46

V. Queensland Wire under Market Manipulation

VI. Melway: Factual Matrix

VII. Melway under Harper Section 46

VIII. Melway under Market Manipulation

IX. Conclusion

5. Predatory Pricing

I. Introduction

II. Boral: Factual Matrix

III. Gaps in the Factual Matrix

IV. Boral under Harper Section 46

V. Boral under Market Manipulation

VI. Conclusion

6. Meeting Competition

I. Introduction

II. Rural Press: Factual Matrix

III. Gaps in the Factual Matrix

IV. Rural Press under Harper Section 46

V. Rural Press under Market Manipulation

VI. Conclusion

7. Raising Rivals' Costs

I. Introduction

II. Cement Australia: Factual Matrix

III. Gaps in the Factual Matrix

IV. Cement Australia under Harper Section 46

V. Cement Australia under Market Manipulation

VI. Conclusion

8. Bundling

I. Introduction

II. Baxter: Factual Matrix

III. Gaps in the Factual Matrix

IV. Baxter under Harper Section 46

V. Baxter under Market Manipulation

VI. The Implications of Pfizer

VII. Conclusion

9. Institutional and Procedural Implications

I. Introduction

II. NT Power

III. The Burden of Proof

IV. Conclusion

PART III
CONCLUSION
10. Findings and Recommendations

I. Introduction

II. The Concept of Market Power

III. Paradigms of Competition and Norms of Conduct

IV. Forensic Assessment of Misuse of Market Power: Conclusions from the Case Studies

V. Implications for Competition Law

Über Autor(innen)

Raitt, George
George Raitt is a consultant at Piper Alderman, a national law firm in Australia. He has practised as a principal for over 30 years, in most areas of corporate and commercial law. Prior to joining Piper Alderman, George was a partner in Blake Dawson Waldron (now Ashurst) for 12 years. He is also qualified as a Chartered Accountant, and holds a Master of Tax Laws from the University of New South Wales.

He has a Ph. D from Deakin University on the adaptation of literature to film. George has acted for a range of private sector and public sector clients, particularly in the science and technology sector, including commercial enterprises, collaborative ventures, universities, medical research institutes and not-for profit organisations. He was a founding director of the Olivia Newton-John Cancer Research Institute.

He is a sessional lecturer in the Monash University Faculty of Law, lecturing in competition law and copyright and designs law at graduate and undergraduate levels. He has also lectured in equity and trusts, and patent law.

George Raitt is a Consultant at Piper Alderman, Melbourne and Lecturer at the Faculty of Law, Monash University.