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16th April 2014

Let the chips fly! Competition Policy Review releases its Issues Paper and Review timetable

16th April 2014

By Luke Woodward, Gina Cass-Gottlieb, Morelle Bull, Matt Rubinstein

The Competition Policy Review Panel led by Professor Stephen Harper has now released its Issues Paper and is calling for submissions by 10 June 2014.

15th April 2014

ACCC seeks comments on revised Immunity Policy for Cartel Conduct

15th April 2014

By Simon Snow, Genevieve Rahman, Katie Price

On 9 April 2014 the Australian Competition and Consumer Commission released a draft version of the immunity and co-operation policy for cartel conduct and Frequently Asked Questions regarding the Policy for public comment. Comments are due by 7 May 2014 to immunityreview@accc.gov.au.

14th April 2014

Internal investigations and legal professional privilege – don’t get caught in the grey zone

14th April 2014

By Rani John, Angela Ha

By their very nature, reports of internal investigations can contain material which be extremely damaging in any subsequent litigation. Recent decisions in the US and the UK provide a timely reminder that legal professional privilege only attaches to communications when strict criteria are met, and that reports of internal investigations will often fail the test unless careful precautions have been taken. Click here for more on those cases, and some tips to maximise the ability to claim privilege in this context.

8th April 2014

Flight Centre fined $11 million for cartel attempts

8th April 2014

By Simon Snow

Simon Snow discusses the $11 million penalty for attempted price fixing and the implications for business.

1st April 2014

Court imposes $11 million penalty on Flight Centre for attempted price-fixing

1st April 2014

By Simon Snow, Andrew Willekes, Andrew Low

On 28 March 2014, Justice Logan of the Federal Court of Australia ordered Flight Centre to pay a total of $11 million (in civil penalties) for attempted price fixing in ACCC v Flight Centre Limited (No 3) [2014] FCA 292.

31st March 2014

Harper Review 2014 – Appointment of Review Panel and Final Terms of Reference

31st March 2014

By Gina Cass-Gottlieb, Luke Woodward, Matt Rubinstein

On 27 March 2014 the Minister for Small Business, Bruce Billson MP, announced the appointment of the Review Panel that will oversee what had been referred to as the ‘root and branch’ competition review, but will be known to history as the Harper Review.

24th March 2014

Enforcement of Foreign Bribery Laws in Australia

24th March 2014

By Rani John, Genevieve Rahman

Regulatory enforcement specialists Rani John and Genevieve Rahman examine how the Proceeds of Crime Act 2002 can magnify the risks connected with foreign bribery, and the implications for individuals and corporations. Click here to access the white paper and video cast.

19th March 2014

Pushing boundaries – anticompetitive conduct relating to the expiry of patents and the use of loyalty discounts

19th March 2014

By Simon Snow, John Lee, Charles Coorey, Lydia Adkins

In February 2014, the ACCC brought Federal Court proceedings against Pfizer Australia for alleged misuse of market power and exclusive dealing in relation to its previously patent protected cholesterol lowering drug, “atorvastatin” (both its originator brand “Lipitor” and its generic atorvastatin product). Lipitor was for some years Australia’s highest selling prescription medicine under the Pharmaceutical Benefits Scheme.

6th March 2014

ACCC releases its priorities for 2014

6th March 2014

By Jennifer Barron

Jennifer Barron, Special Counsel, discusses the ACCC’s 2014 priorities.

24th February 2014

Pfizer charged with anti-competitive conduct

24th February 2014

By Simon Snow

Simon Snow, Partner, discusses the anti-competitive conduct charges against Pfizer by the ACCC.

18th February 2014

Commonwealth Government’s Root and Branch Review of Competition Law and Policy

18th February 2014

By Luke Woodward

Professor Fred Hilmer AO, President and Vice-Chancellor of the University of New South Wales and formerly head of the 1992–1993 Independent Committee of Inquiry into a National Competition Policy for Australia, recently presented to Gilbert + Tobin’s clients and the Business Council of Australia’s members at a Competition Policy Forum on the Commonwealth Government’s Root and Branch Review.

13th February 2014

Our Expert Insights video interviews and inaugural Competition Review

13th February 2014

By Luke Woodward

Our Competition Review comprises a written publication, a short video introduction presented by Gilbert + Tobin Lawyers Morelle Bull and Charles Coorey and video interviews which we conducted with experts in the Australian Competition and Regulatory Law field.

20th December 2013

Dual distribution models at a crossroad: where do the ANZ and Flight Centre cases leave us?

20th December 2013

By Luke Woodward, Elizabeth Avery, Simon Snow, Charles Coorey, Genevieve Rahman

We discuss the recent decisions of the Federal Court in ACCC v Australian and New Zealand Banking Group Limited and ACCC v Flight Centre Limited.

13th December 2013

From the vulgarian to the astute: does it matter?

13th December 2013

By Rani John, Andrew Willekes

We discuss the High Court’s majority decision in ACCC v TPG and how it provides important guidance on the question of how the knowledge imputed to the reasonable consumer impacts the assessment of whether advertising is misleading or deceptive.

13th December 2013

NBN Strategic Review: No Easy Way Out

13th December 2013

By Peter Waters

This is a summary of the Strategic Review provided to Minister Turnbull by NBN Co, with the assistance of Deloitte, Boston Consulting and KordaMentha.

6th December 2013

Federal Court finds Flight Centre attempted to induce various airlines to enter into price fixing arrangements

6th December 2013

By Simon Snow, Andrew Low

On Friday 6 December, the Federal Court of Australia published its reasons in ACCC v Flight Centre Limited (No 2) [2013] FCA 1313, finding that Flight Centre attempted, on six occasions, to induce three airlines (being Singapore Airlines, Emirates and Malaysia Airlines) to make collusive arrangements with it in relation to Flight Centre’s retail or distribution margin for air fares for international air travel in the period August 2005 to March 2009. The Court found that these collusive arrangements would have (if entered into) lessened competition in the market for the retail sale or distribution of airline tickets.

25th November 2013

Court of Criminal Appeal quashes conviction for insider trading

25th November 2013

By Rani John, Genevieve Rahman, Lara Hall

On 20 November 2013, the NSW Court of Criminal Appeal published its reasons for its decision on 17 July 2013 to quash Stuart Fysh’s convictions for insider trading, relating to the purchase of shares in Queensland Gas Company. We discuss the Court of Criminal Appeal’s decision.

7th November 2013

Recovering mistakenly produced privileged documents: the High Court’s decision in Expense Reduction Analysts Group v Armstrong Strategic Management

7th November 2013

By Rani John, Alistair Schaefer

With the size and complexity of commercial litigation on the rise, and a corresponding increase in the size and complexity of discovery, it is an unfortunate reality that mistakes can sometimes occur during the discovery process.

22nd October 2013

G+T Competition Law Reporter – August/September 2013

22nd October 2013

This Reporter provides an overview of key developments in the competition, consumer and regulation sector, including recent ACCC merger reviews, competition and consumer law enforcement and various ACCC authorisations and investigations. In particular, this edition highlights recently completed merger reviews conducted by the ACCC, the ACCC’s recent cartel immunity policy review, the ACCC’s updated merger review process guidelines and international competition news.

10th October 2013

ACCC releases discussion paper seeking submissions in cartel immunity policy review

10th October 2013

By Elizabeth Avery, Gina Cass-Gottlieb, Moya Dodd, Paula Gilardoni, Rani John, Simon Snow, Peter Waters, Luke Woodward, Jennifer Barron

The ACCC has recently released a discussion paper seeking input on issues arising in its review of the ACCC Immunity Policy for Cartel Conduct. We discuss the changes.

4th October 2013

Informal merger review process guidelines recently released by the ACCC

4th October 2013

By Simon Snow

Simon Snow discusses the informal merger review process guidelines recently released by the ACCC.

30th September 2013

ACCC releases final informal merger review process guidelines

30th September 2013

By Simon Snow, Emma Ringland

On Friday the ACCC published its finalised Informal Merger Review Process Guidelines (Process Guidelines). The Process Guidelines were informed by a consultation process conducted by the ACCC following the release of the draft Updated Merger Review Process Guidelines in June this year. We discuss the changes.

19th September 2013

Benchmarks and index-based price setting mechanisms: where to now?

19th September 2013

By Paula Gilardoni, Emma Ringland

The European Commission’s Proposed Regulation follows the announcement of a number of investigations that are currently being conducted by regulators in relation to index-based prices setting mechanisms which, in turn, followed regulators’ investigations into the manipulation of the LIBOR.

11th September 2013

Anti-bribery regulatory activity on the rise

11th September 2013

By Rani John

Gilbert + Tobin partner Rani John, discusses anti-bribery regulation and the increased regulatory activity in this area and its impact on Australian companies, both from Australian and foreign agencies.

11th September 2013

Federal Court hands down judgment in landmark Cement Australia competition case

11th September 2013

By Luke Woodward, Colleen Platford, Genevieve Rahman, Andrew Willekes, Airlie Goodman, Leanne Meyer

Yesterday, 10 September 2013, the Federal Court handed down judgment in Australian Competition and Consumer Commission v Cement Australia Pty Ltd & Ors [ 2013 ] (the proceedings) making interim declarations that the defendants, including Cement Australia Pty Ltd, had not engaged in contraventions of section 46 of the Trade Practices Act 1974 (Cth) (the Act) (now known as the Competition and Consumer Act 2010 (Cth)).

13th August 2013

Antitrust spotlight continues on private equity firm bidding practices

13th August 2013

By Elizabeth Avery, Luke Woodward, Genevieve Rahman

Following the recent case in Australia (Norcast S.ar v Bradken Limited (No 2) [ 2013 ] FCA 235 (appeal pending to be heard over four days from 4 November 2013) alleging anti-competitive bid arrangements between private equity firms, similar issues continue to rise to prominence under US antitrust laws as well.

29th July 2013

Timely review of National Access Regime

29th July 2013

By Simon Muys

Simon Muys, Partner, discusses the review of the National Access Regime.

2nd July 2013

ACCC releases draft Merger Process Guidelines

2nd July 2013

By Simon Snow, Charles Coorey, Emma Ringland

The ACCC has released draft updated Merger Review Process Guidelines (Draft Guidelines). The ACCC is in the process of seeking views on the Draft Guidelines, and submissions are due on Friday 19 July 2013. We discuss the key proposed changes.

28th June 2013

What is an “artificial price”? The High Court rules on market manipulation

28th June 2013

By Rani John, David Clee

On 27 June 2013 the High Court handed down its unanimous decision in Director of Public Prosecutions (Cth) v JM [2013] HCA 30, regarding the meaning of the phrase “artificial price” in s 1041A of the Corporations Act 2001.

27th June 2013

NFC – Developers beware (the regulators are watching)

27th June 2013

By Paula Gilardoni, Emma Ringland, Lara Hall

With the use in Australia of Near Field Communication ( NFC ) technology expected to increase, regulators are turning their attention to the implications of this new technology.

6th June 2013

Social media unplugged – what’s your exposure?

6th June 2013

By Rani John, Ken Saurajen, Lena Vanmali

Social media is becomingly increasingly relevant as a valuable platform to connect with consumers, but despite this recognition, many Australian companies either have not engaged with consumers in this way, or engage without full realisation of the risks involved.

20th May 2013

G+T Competition Law Reporter – April 2013

20th May 2013

This Reporter provides an overview of key developments in the competition and regulation sector, including recent ACCC merger reviews, competition and consumer law enforcement and various ACCC authorisations and investigations. This edition highlights Rod Sims’ keynote address at Gilbert + Tobin’s Competition Policy Workshop, a synopsis of the unopposed acquisition by Virgin Australia of 60% of Tiger Airways and the ACCC’s draft decision on the NBN Co Special Access Undertaking.

17th May 2013

Index-based price setting mechanisms: Dawn raids conducted by the EC

17th May 2013

By Elizabeth Avery, Gina Cass-Gottlieb, Emma Ringland

On Tuesday 14 May (European time), the European Commission conducted dawn raids on BP, Royal Dutch Shell and Norwegian oil and gas company Statoil over allegations of anticompetitive conduct in the oil and biofuel sectors that may have been ongoing since 2002. The London offices of Platts, the world’s leading price reporting agency owned by McGraw-Hill, have also been raided.

16th May 2013

With strings attached – lessons from MOFCOM’s most recent merger decisions

16th May 2013

By Paula Gilardoni, Bridget Liedig

Co-authored with Janet Hui of Jun He. China’s merger control regime requires the compulsory notification of mergers. In the context of a large global merger, it is typically understood that approvals in China will be required. However, approvals may also be needed in transactions that are smaller and unlikely to be thought of as “global”.

1st May 2013

CIIAI Symposium Article HK Competition Ordinance

1st May 2013

By Peter Waters

This article was first distributed at the China Institute of International Antitrust and Investment Symposium in March 2013. It is to be published later this year in a publication produced by LexisNexis.

1st May 2013

Looking to the future – the ACCC’s strategic approach under Mr Rod Sims

1st May 2013

By Gina Cass-Gottlieb, Emma Ringland

Given the ACCC’s new strategic approach, what are some strategic “next steps” for businesses engaging in activities relevant to the ACCC’s areas of focus within mergers, enforcement and compliance? This article was first distributed at the China Institute of International Antitrust and Investment Symposium in March 2013. It is to be published later this year in a publication produced by LexisNexis.

24th April 2013

G+T Competition Law Reporter – March 2013

24th April 2013

This issue provides an overview of key developments throughout March in the competition and regulation sector, including recent ACCC merger reviews, competition and consumer law enforcement and various ACCC authorisations and investigations.

10th April 2013

The Coalition’s Broadband Policy

10th April 2013

By Peter Waters, Bridget Liedig

The Coalition has announced its alternative broadband policy for Australian homes and businesses. The Coalition has billed its policy as ‘fast, affordable and sooner’ than the Labour Government’s policy, and says that this can be achieved by making a mix of technology choices that meet community needs in a far more cost effective way. In this update we provide an assessment of the Coalition’s policy.

8th March 2013

G+T Competition Law Reporter – January/February 2013

8th March 2013

Covering key developments in the competition and regulation sector during January and February, this issue provides an overview of recent ACCC merger reviews, judicial decisions and proceedings, consumer law enforcement and various ACCC authorisations and investigations.

5th February 2013

ACCC commences proceedings against Visa

5th February 2013

By Elizabeth Avery, Paula Gilardoni, Charles Coorey

On Monday 4 February the ACCC commenced proceedings against Visa alleging misuse of market power and exclusive dealing in relation to the supply of dynamic currency conversion (DCC) services.

21st January 2013

20 years of the SLC test in Australian merger law

21st January 2013

By Luke Woodward, Romany Webb, Miles Foran

20 years on – The substantial lessening of competition test in Australia merger law. The 20 year anniversary of the introduction of the substantial lessening of competition test as the standard for merger review under Australian competition law.

4th December 2012

Productivity Commission commences National Access Regime inquiry

4th December 2012

By Simon Snow, Simon Muys

The Productivity Commission has commenced its much-anticipated review of the National Access Regime by publishing an Issues Paper. The Issues Paper asks for responses to over 80 questions about the role and operation of the current regime, many of which are fundamental. The Commission’s final report comes at a critical time for infrastructure policy in Australia and is likely to influence the design and operation of access regulation over the next decade or more.

21st November 2012

Access regime: Public policy questions remain

21st November 2012

By Luke Woodward, Simon Muys

Assistant Treasurer David Bradbury recently announced a Productivity Commission inquiry into the National Access Regime. The inquiry is timely as the recent High Court Pilbara railways decision concluded that the requirement that the facility not be economic to duplicate is to be tested against whether it is not privately profitable to duplicate, rather than socially economic to duplicate (e.g. a natural monopoly). So why mandate access? The regime’s objective has never been clear. Is it to: protect competition in related markets against a refusal of access by controllers of bottleneck infrastructure? Or to promote socially efficient use of monopoly infrastructure and avoid inefficient monopoly pricing and access terms?

20th November 2012

Antitrust Asia: Guide to Vertical Arrangements

20th November 2012

By Peter Waters

With the assistance of other firms participating in AntitrustAsia, we have developed a tool to guide firms through the confusing maze of rules on vertical restraints across the key Asia Pacific markets. The tool provides a snapshot risk matrix for the key forms of vertical restraints, such as exclusive territories or retail price maintenance. It then backs this up with a more detail table explaining the law.

13th November 2012

G+T Competition Law Reporter – October 2012

13th November 2012

By Elizabeth Avery, Gina Cass-Gottlieb, Moya Dodd, Paula Gilardoni, Rani John, Catherine Dermody, Simon Snow, Peter Waters, Luke Woodward

The issue contains a snapshot of recent ACCC activity including merger reviews, opposed mergers, consumer law enforcement and addresses by the ACCC Chairman and Deputy Chair on energy reform and carbon pricing claims.

12th October 2012

G+T Competition Law Reporter – August/September 2012

12th October 2012

By Elizabeth Avery, Gina Cass-Gottlieb, Catherine Dermody, Moya Dodd, Paula Gilardoni, Rani John, Simon Snow, Peter Waters, Luke Woodward

This issue contains a snapshot of recent ACCC activity including merger reviews, consumer law enforcement, collective bargaining authorisations and addresses by Chairman Rod Sims outlining infrastructure reforms, opportunities and challenges in a range of sectors.

17th September 2012

High Court brings down decision in Pilbara rail access dispute

17th September 2012

By Luke Woodward, Simon Muys, Catherine Dermody

In a watershed 6-1 judgement, the High Court has rejected a decade-long held view that the Australian Competition Tribunal, aided by lawyers and economists, should be able to impose its view of an ‘efficient’ market structure through declaration of access under Part IIIA. Instead, questions of investment and access to key infrastructure are now left to a political process, based on the real world assessment of bankers and investors.

22nd August 2012

C+R Monthly Roundup – June/July 2012

22nd August 2012

By Elizabeth Avery, Gina Cass-Gottlieb, Moya Dodd, Paula Gilardoni, Simon Snow, Peter Waters, Luke Woodward, Rani John, Catherine Dermody

This issue contains a snapshot of key ACCC activity throughout the month, including merger reviews, carbon pricing investigations, collective bargaining authorisations and an address by Rod Simms outlining the ACCC’s proposed new approach to incremental acquisitions in the liquor, grocery and home improvement sectors.

20th August 2012

Rod Sims waves the Invisible Hand: ACCC directions under the new Chairman

20th August 2012

By Elizabeth Avery, Emma Ringland

This update is an overview of the implementation of Mr Sims’ agenda in his first year in office as Chairman of the Australian Competition and Consumer Commission (ACCC).

8th August 2012

The International Investigations Review – August 2012

8th August 2012

By Rani John, Elizabeth Avery, Peter Feros, Justine Cameron, Kaushalya Mataraaratchi

The Australian Chapter of the Second Edition of International Investigations Review outlines significant changes in enforcement matters in Australia. Reproduced with permission from Law Business Research Ltd.

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