Overview

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.

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9781107184763

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Reviews

'Katharine Kemp's Misuse of Market Power is a powerful description and analysis of tests to identify unilateral conduct that harms the market and should be proscribed. Coming on the heels of Australia's 'effects' amendment to its unilateral conduct law, Kemp's book promises to be an important tool in interpreting the new law wisely and pragmatically. Her thoughtful synthesis of how to minimize error costs and provide certainty, administrability and legitimacy may be a beacon for interpreting dominance and monopoly laws around the world.' Eleanor M. Fox, Walter J. Derenberg Professor of Trade Regulation, New York University School of Law 'Katharine's interventions in the debate leading up to the recent reforms to section 46 of Australia's Competition and Consumer Act were scholarly, insightful and influential. Her contributions also helped to moderate the tone of public commentary that occasionally became quite confused. In this book she has now brought her reasoned and careful approach to an excellent exposition of the issues in this most complex area of competition policy and law. Her fascinating description of the development of abuse of dominance and monopolization laws in England, Germany, Australia, Europe and the United States gives valuable historical context to her careful analysis of the arguments that have surrounded the framing and application of the laws that seek to keep the power of oligarchs and monopolists in check. Katharine's book will be a valuable resource for my ACCC colleagues, students, academics, legal practitioners, and I suspect, the Courts. It will be a key tool as we all seek to apply Australia's misuse of market power law in years to come. It is also an impressive addition to the international debate about the scope of laws and policies addressing anticompetitive action by dominant businesses.' Rod Sims, Chairman of the Australian Competition and Consumer Commission

Katharine Kemp's Misuse of Market Power is a powerful description and analysis of tests to identify unilateral conduct that harms the market and should be proscribed. Coming on the heels of Australia's effects amendment to its unilateral conduct law, Kemp's book promises to be an important tool in interpreting the new law wisely and pragmatically. Her thoughtful synthesis of how to minimize error costs and provide certainty, administrability and legitimacy may be a beacon for interpreting dominance and monopoly laws around the world. Eleanor M. Fox, Walter J. Derenberg Professor of Trade Regulation, New York University School of Law Katharine's interventions in the debate leading up to the recent reforms to section 46 of Australia's Competition and Consumer Act were scholarly, insightful and influential. Her contributions also helped to moderate the tone of public commentary that occasionally became quite confused. In this book she has now brought her reasoned and careful approach to an excellent exposition of the issues in this most complex area of competition policy and law. Her fascinating description of the development of abuse of dominance and monopolisation laws in England, Germany, Australia, Europe and the United States gives valuable historical context to her careful analysis of the arguments that have surrounded the framing and application of the laws that seek to keep the power of oligarchs and monopolists in check. Katharine's book will be a valuable resource for my ACCC colleagues, students, academics, legal practitioners, and I suspect, the Courts. It will be a key tool as we all seek to apply Australia's misuse of market power law in years to come. It is also an impressive addition to the international debate about the scope of laws and policies addressing anti-competitive action by dominant businesses. Rod Sims, Chairman of the Australian Competition and Consumer Commission

Author Information

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.

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