The Metaphysics of Market Power: The Zero-Sum Competition and Market Manipulation Approach

Description

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. Volume 22 in the series Hart Studies in Competition Law Foreword Preface Acknowledgements Contents Abbreviations Table of Cases Table of Legislation List of Figures and Tables Introduction 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 Appendix: Text of the Old and New Versions of Section 46 of the CCA Old (or Pre-Harper) Section 46 Harper Review Recommended Version of Section 46 Version of Section 46 Adopted by Parliament Bibliography Index