Areeda–Turner “Down Under”: Predatory Pricing in Australia Before and After Boral

Areeda–Turner “Down Under”: Predatory Pricing in Australia Before and After Boral In the only predatory pricing case in Australia to reach the High Court, the ideas and recommendations contained in the 1975 Harvard Law Review article by Phillip Areeda and Donald Turner were at the heart of the case. That case, the Boral case, decided by the High Court in 2003, raised a number of interesting issues with regard to whether and how the test that was proposed by Areeda and Turner should be employed to deal with price cuts by large firms that are aimed at competitors. Equally important, the case raised some fundamental questions about whether there was a serious “gap” in the Australian equivalent of Section 2 of the Sherman Act—Section 46 of the Competition and Consumer Act 2010, formerly the Trade Practices Act 1974 (TPA)—which made it difficult to challenge predatory conduct. Boral led immediately to some radical changes in the TPA; but, even today, more than 10 years after Boral, Australians are still struggling to develop the right statutory framework to deal with predatory pricing. This paper will describe the Boral case, discuss how the Australian courts, including the High Court, attempted to apply the A–T test to the facts of the case, and survey and comment on the ongoing legislative turmoil that followed from High Court’s decision. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Review of Industrial Organization Springer Journals

Areeda–Turner “Down Under”: Predatory Pricing in Australia Before and After Boral

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Publisher
Springer US
Copyright
Copyright © 2015 by Springer Science+Business Media New York
Subject
Economics / Management Science; Industrial Organization; Microeconomics
ISSN
0889-938X
eISSN
1573-7160
D.O.I.
10.1007/s11151-015-9461-4
Publisher site
See Article on Publisher Site

Abstract

In the only predatory pricing case in Australia to reach the High Court, the ideas and recommendations contained in the 1975 Harvard Law Review article by Phillip Areeda and Donald Turner were at the heart of the case. That case, the Boral case, decided by the High Court in 2003, raised a number of interesting issues with regard to whether and how the test that was proposed by Areeda and Turner should be employed to deal with price cuts by large firms that are aimed at competitors. Equally important, the case raised some fundamental questions about whether there was a serious “gap” in the Australian equivalent of Section 2 of the Sherman Act—Section 46 of the Competition and Consumer Act 2010, formerly the Trade Practices Act 1974 (TPA)—which made it difficult to challenge predatory conduct. Boral led immediately to some radical changes in the TPA; but, even today, more than 10 years after Boral, Australians are still struggling to develop the right statutory framework to deal with predatory pricing. This paper will describe the Boral case, discuss how the Australian courts, including the High Court, attempted to apply the A–T test to the facts of the case, and survey and comment on the ongoing legislative turmoil that followed from High Court’s decision.

Journal

Review of Industrial OrganizationSpringer Journals

Published: Apr 5, 2015

References

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