The Metaphysics of Market Power - The Zero-sum Competition and Market Manipulation Approach

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.>

List of contents

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

About the author

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.

Product details

• Authors: George Raitt, RAITT GEORGE
• Publisher: Hart Publishing
• Languages: English
• Product format: Hardback
• Released: 30.06.2019
• EAN: 9781509928071
• ISBN: 978-1-5099-2807-1
• No. of pages: 328
• Series: Hart Studies in Competition Law; Hart Studies in Competition Law
• Subjects: Social sciences, law, business > Law > Mercantile and commercial law; LAW / General, Competition law / Antitrust law