Competition and Regulation
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
By Paula Gilardoni, Melanie Tan, 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
By Peter Waters, Melanie Tan
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
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
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
By Peter Waters, Andrew De Celis, 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
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
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
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
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
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
By Peter Waters, Melanie Tan
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
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
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
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
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
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
By Rani John, Elizabeth Avery, Peter Feros, Justine Cameron, Peter Giurissevich, 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.
19th June 2012
By Peter Waters
Partner Peter Waters presents on challenges posed by M2M at CommunicAsia 2012
14th June 2012
By Peter Waters, Melanie Tan
On 14 June 2012, after nearly two years of ongoing deliberations, Hong Kong’s Legislative Council (LegCo) finally enacted Hong Kong’s first cross-sector competition law. The new law, known as the Competition Ordinance (the CO), will enter into force at a date to be set separately by the Secretary for Commerce and Economic Development.
14th June 2012
By Elizabeth Avery, Gina Cass-Gottlieb, Moya Dodd, Catherine Dermody, Paula Gilardoni, Simon Snow, Peter Waters, Luke Woodward
This update provides a summary of the latest competition developments in legislation , cases and ACCC activity.
27th April 2012
By Elizabeth Avery, Gina Cass-Gottlieb, Luke Woodward, Moya Dodd, Simon Snow, Peter Waters, Paula Gilardoni
This update provides a summary of the latest competition developments in legislation , cases and ACCC activity.
23rd January 2012
By Elizabeth Avery, Luke Woodward, Adelina Widjaja, Morelle Bull
The Australian chapter of Dominance 2012 was published as part of the Getting the Deal Through series. Accreditation: Reproduced with permission from Law Business Research Limited. This article was first published in Getting the Deal Through – Dominance 2012, (published in December, 2011; contributing editors Thomas Janssens and Thomas Wessely, Freshfields Bruckhaus Deringer). For further information please visit www.GettingTheDealThrough.com.
23rd December 2011
By Elizabeth Avery, Luke Woodward, Peter Waters, Gina Cass-Gottlieb, Simon Snow, Moya Dodd, Catherine Dermody
The Parliamentary Secretary to the Treasurer, David Bradbury, has today released the proposed price signalling regulations for consultation. After much debate, the Government’s Competition and Consumer Act Amendment Act (No 1) 2011 was recently passed to prohibit price signalling and other information disclosures, as prescribed by regulation.
20th December 2011
By Morelle Bull, Catherine Dermody
Please click here to access the Australian chapter of Electricity Regulation 2012, that presents an overview of the government policy and legislative framework for the electricity sector in Australia. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Electricity Regulation 2012, (published in November, 2011; contributing editor: Earle H O’Donnell, White & Case LLP). For further information please visit www.GettingTheDealThrough.com.
12th December 2011
By Andrew Floro, Matt Mackenzie
On 8 December 2011, the Federal Court has ordered that Harvey Norman pay a pecuniary penalty of $1.25 million for contraventions of the Trade Practices Act (TPA) and the Australian Consumer Law (ACL).
1st December 2011
By Elizabeth Avery, Peter Waters, Simon Snow, Luke Woodward, Gina Cass-Gottlieb, Moya Dodd, Catherine Dermody
The Full Court of the Federal Court of Australia dismissed the ACCC’s appeal from Emmett J’s decision in Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079, in effect giving Metcash the green light to complete its $215 million acquisition of Franklins.
29th November 2011
By Elizabeth Avery, Gina Cass-Gottlieb, Luke Woodward, Simon Snow, Catherine Dermody
On 25 November 2011, the Senate passed the Competition and Consumer Legislation Amendment Bill 2011 (the Bill) without amendment. Senator Xenophon moved proposed amendments to the Bill but they were not agreed.
25th November 2011
By Elizabeth Avery, Gina Cass-Gottlieb, Catherine Dermody, Simon Snow, Luke Woodward
On 24 November 2011, the Senate passed the Competition and Consumer Amendment Bill (No. 1) 2011 (Bill) with no amendments. The Bill will amend the Competition and Consumer Act 2010 to prohibit anti-competitive price signalling and will commence 6 months after it receives Royal Assent.
1st November 2011
By Elizabeth Avery, Luke Woodward, Peter Waters, Gina Cass-Gottlieb, Simon Snow, Moya Dodd, Catherine Dermody
This update provides a summary of the latest competition developments in legislation , cases and ACCC activity.
20th October 2011
By Peter Waters, Melanie Tan
The Hong Kong Government has announced a package of proposed amendments to the Competition Bill (Bill) to address concerns from the business community, especially SMEs. The Secretary for Commerce and Economic Development Greg So will brief the Legislative Council (LegCo) Competition Bill Committee (Bills Committee) on the amendments next Tuesday, 25 October 2011.
10th October 2011
By Kaushalya Mataraaratchi, Rani John, Peter Giurissevich, Peter Feros, Justine Cameron, Elizabeth Avery
The past year has seen important decisions and developments in a number of areas affecting investigations and enforcement action taken by Australian regulators. The Australian Chapter of the inaugural International Investigations Review outlines significant changes in enforcement matters in Australia. Reproduced with permission from Law Business Research Ltd.
27th September 2011
By Matt Mackenzie, Andrew Floro
The Australian Competition and Consumer Commission (ACCC), brought a case against Google Inc and Trading Post alleging that they had engaged in misleading or deceptive conduct in connection with the publication of sponsored links on Google’s search results pages in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA). An equivalent provision to s 52 of the TPA is now found in s 18 of the Australian Consumer Law (ACL).
13th September 2011
By Jennifer Barron
Justice Dowsett of the Federal Court has dismissed an application by the Australian Energy Regulator (AER) alleging that Stanwell Corporation Limited (Stanwell) breached its obligation under the National Electricity Rules (Rules) to bid its dispatch capacity in good faith. The decision provides important guidance to generators, the AER and rule-making and policy-making bodies about the substance of the obligation to bid in good faith.
25th August 2011
By Elizabeth Avery, Luke Woodward, Peter Waters, Gina Cass-Gottlieb, Simon Snow, Moya Dodd, Catherine Dermody
This morning Justice Emmett of the Federal Court ordered that the ACCC’s challenge to Metcash’s acquisition of Franklins be dismissed. A summary of the Court’s conclusions was released today, with full reasons to follow tomorrow.
19th August 2011
By Luke Woodward, Peter Waters, Simon Snow, Moya Dodd, Catherine Dermody, Gina Cass-Gottlieb, Elizabeth Avery
On 17 August 2011, the House of Representatives passed the Government’s Competition and Consumer Legislation Amendment Bill 2011 (Bill) to amend the Competition and Consumer Law Act 2010 (CCA). The Bill proposes to address the issue of creeping acquisitions and simplify the unconscionable conduct provisions in the Australian Consumer Law (ACL).
31st July 2011
By Simon Snow, Luke Woodward, Peter Waters, Moya Dodd, Catherine Dermody, Gina Cass-Gottlieb, Elizabeth Avery
This update provides a summary of the latest competition developments in legislation , cases and ACCC activity.
18th July 2011
By Simon Snow, Leanne Meyer
The Government announced on 13 July 2011 that it would provide $12.8 million in additional funding to the Australian Competition and Consumer Commission (ACCC) to enable the ACCC to investigate and prosecute businesses that make misleading claims about the impact of the carbon tax on prices.
12th July 2011
By Elizabeth Avery
Click here to listen to Partner Elizabeth Avery discuss the changes made to the Government’s price signalling bill, which passed in the House of Representatives on Thursday, 7 July, 2011.
12th July 2011
By Andrew Floro
On 7 July 2011, Justice Perram of the Federal Court of Australia ordered Singtel Optus to pay $5.26 million in civil pecuniary penalties for breaches of consumer protection provisions of the Trade Practices Act 1974 (TPA) (equivalent provisions are now found in the Australian Consumer Law which forms a schedule to the Competition and Consumer Act 2010). This is the biggest civil penalty imposed since the Federal Court was granted powers to order civil pecuniary penalties for breaches of consumer protection laws.
7th July 2011
By Elizabeth Avery
The House of Representatives has passed the Government’s proposed Competition and Consumer Amendment Bill (No. 1) 2011 (Bill), to amend the Competition and Consumer Act 2010 with some significant amendments to the proposed per se prohibition on private disclosures between competitors in s 44ZZW (Private Disclosure Prohibition).
16th May 2011
By Simon Snow, Leanne Meyer
A number of significant changes to national consumer protection laws introduced in 2010, resulted in the introduction of the Australian Consumer Law (ACL) in January 2011. On 12 April 2011, the Federal Court imposed penalties of $2.7 million on two overseas companies under these new provisions, the highest penalty awarded since new and enhanced penalties and enforcement powers were brought into the Trade Practices Act [since renamed the Competition and Consumer Act 2010 (Cth) (CCA)]. Click on our news alert for an update on other ACL and CCA developments.
13th May 2011
On 14 April 2011 Gilbert + Tobin hosted a special forum on the proposed legislation relating to price signalling and information exchanges. Part one featured a keynote address by the Hon David Bradbury MP, Parliamentary Secretary. Part two involved an interactive debate moderated by Gilbert + Tobin partner Luke Woodward, featuring speakers Stephen King, economist, the Hon Peter Heerey QC, retired Federal Court Judge and Elizabeth Avery, Gilbert + Tobin Partner. Click the price signalling forum hyperlink above for more details.
30th April 2011
By Luke Woodward, Peter Waters, Simon Snow, Moya Dodd, Catherine Dermody, Gina Cass-Gottlieb, Elizabeth Avery
This update provides a summary of the latest competition developments in legislation , cases and ACCC activity.
28th March 2011
By Elizabeth Avery, Luke Woodward
Click here to listen to Partners Elizabeth Avery and Luke Woodward provide an update on price signalling reforms, following the introduction of the Government’s Bill into parliament last Thursday, 24 March, 2011.
25th March 2011
By Christoph van Opstal, Elizabeth Avery
The Government yesterday introduced its new laws to outlaw price signalling practices and other information disclosures into Parliament.
11th March 2011
By Luke Woodward, Peter Waters, Simon Snow, Moya Dodd, Catherine Dermody, Gina Cass-Gottlieb, Elizabeth Avery
A price squeeze occurs where a vertically integrated company raises its wholesale prices to competitors in the downstream market, and lowers its own retail prices to customers, resulting in a squeeze of the profit margins of downstream competitors. European Union and United States courts, in a set of matching cases in telecommunications, take opposite views about whether the conduct breaches competition/antitrust law.
14th February 2011
By Christoph van Opstal, Elizabeth Avery
On 12 December 2010, the Government released an Exposure Draft of the Competition and Consumer Amendment Bill (No 1) 2011 proposing to amend the Competition and Consumer Act 2010 (Cth) (CCA) (formerly known as the Trade Practices Act 1974) and introduce civil prohibitions against anti-competitive price signalling and information exchanges (Government Bill).
17th November 2010
Click here to listen to Partner Tim Gole discuss the reforms and what they mean for businesses and consumers alike.
23rd September 2010
By Luke Woodward, Peter Waters, Simon Snow, Moya Dodd, Catherine Dermody, Gina Cass-Gottlieb, Elizabeth Avery
Recent merger reviews by the Australian Competition and Consumer Commission (ACCC) reveal that the ACCC is scrutinising transactions more closely, for longer, and is opposing them more frequently.
