Misuse of Market Power Rationale and Reform

Laws prohibiting unilateral anticompetitive conduct have been the subject of vigorous international debate for decades, as policymakers, antitrust scholars and agencies continue to disagree over how best to regulate the market conduct of a single firm with substantial market power. Katharine Kemp describes the controversy over Australia's misuse of market power laws in recent years, which mirrored the international debate in this sphere, and culminated in the fundamental reform of the misuse of market power prohibition under the Competition and Consumer Act 2010 (Cth) in 2017. Misuse of Market Power: Rationale and Reform explains Australia's new misuse of market power law, which adopts an 'effects-based test' for unilateral conduct, and makes a comparative analysis between Australian tests for unilateral anticompetitive conduct and tests from the US and the EU. This text also illuminates the frequently mentioned, but little understood, concept of 'purpose' and its role in framing unilateral conduct standards.

1. Introduction; 2. Unilateral conduct laws: origins, objectives and theory; 3. The history and objectives of unilateral conduct legislation in Australia; 4. A comparative analysis of profit-focused tests for unilateral anticompetitive conduct; 5. A comparative analysis of effects-based tests for unilateral anticompetitive conduct; 6. The role of purpose in unilateral conduct standards.

Katharine Kemp is a Lecturer at the Faculty of Law, University of New South Wales, Sydney (UNSW). Her expertise is in the area of competition and consumer law, particularly comparative competition law and unilateral anticompetitive conduct. She has published in these areas for over a decade, including the loose-leaf, Competition Law of South Africa (2005-present) with P. J. Sutherland, and numerous peer-reviewed journal articles. For her research in this area, she has received the Gaire Blunt Scholarship awarded by the Competition and Consumer Committee of the Law Council of Australia; the Bruce Kercher Scholarship awarded by the Australia and New Zealand Legal History Society; and the UNSW Ph.D. Excellence Award for outstanding research for her thesis on the topic of misuse of market power law. Before joining the Faculty of Law at University of New South Wales, Sydney, Kemp practised as a solicitor at major Australian commercial law firms and then as a barrister specializing in commercial law and intellectual property law.