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Competition and regulatory

​Chapman Tripp comments on cases and issues in the competition, regulatory & antitrust space.

'PAC' - a competition theory to unpick a dilemma

14 June 2016

The recent Z/Chevron merger, which reduces from four to three the number of big players in the New Zealand retail petrol market, required the Commerce Commission to tackle the thorny matter of tacit collusion.

Doing business in New Zealand

01 June 2016

Haere mai is Māori for welcome and New Zealand is one of the most open economies in the world. But there are rules and regulations that will apply, and we are familiar with them. This publication is designed to provide the prospective investor with an introductory guide to the New Zealand legal framework as it applies to business.

Chapman Tripp advises Z Energy on successful Commerce Commission clearance for acquisition of Chevron New Zealand

02 May 2016

Chapman Tripp has advised Z Energy (Z) on the merger clearance for its $785m purchase of Chevron New Zealand (Chevron), the owner of the Caltex and Challenge brands in New Zealand.

Targeted review of competition regime

17 November 2015

​The government is conducting a targeted review of the competition provisions in the Commerce Act, including the misuse of market power prohibition. Submissions are due with the Ministry of Business, Innovation and Employment (MBIE) by 9 February 2016.

The Commerce Commission – not as unpredictable as you might think

09 November 2015

The Commerce Commission has blocked some 22 mergers since the current law came in effect in 2001. We draw some trends from the Commission’s track record to date, then look in detail at three recent “no” decisions.

Court takes ACCC back to basics

04 August 2015

An identically constituted Full Court of the Federal Court of Australia has twice found against the Australian Competition and Consumer Commission (ACCC) in significant price-fixing appeals. In the process, the Court emphasises the importance of sound economic analysis to competition law, to the end that even price-fixing’s deemed contravention of the Trade Practices Act still requires a competition analysis.

Chapman Tripp appoints new Managing Partner - Wellington

29 June 2015

Chapman Tripp has appointed Corporate partner, Andy Nicholls, as the new Managing Partner – Wellington for five years from today, 29 June. He also joins the firm’s Board.

Default drop-dead date for anti-dumping duties?

19 June 2015

Anti-dumping duties may be given a specified termination period under proposals now being consulted on by the Ministry of Business, Innovation and Employment (MBIE). The change, if implemented, is likely to be fairly complex to administer and may reduce the overall effectiveness of New Zealand’s anti-dumping regime. Termination periods would be in addition to the new public interest test, recently adopted in principle by Cabinet. Submissions are due by 26 June 2015.

15 new appointments at Chapman Tripp

02 June 2015

Chapman Tripp is pleased to announce the promotion of 12 senior associates across its Auckland, Wellington and Christchurch offices, and to welcome a new senior associate in the Auckland office. The firm has also recently welcomed two new senior legal advisors* to its tax and competition & regulatory teams.

DOING BUSINESS IN NZ: Regulations affecting business

01 June 2015

Doing Business in New Zealand is a publication designed to provide the prospective investor with an introductory guide to the New Zealand legal framework as it applies to business. This chapter discusses competition law; consumer protection; contract law; public protection; and creditor protection.

Commerce Commission lays out approach to unfair contract terms

03 March 2015

The Commerce Commission has finalised the approach it will take toward the implementation of the new unfair contract term provisions in the Fair Trading Amendment Act 2013, to come into effect on 17 March 2015. There will be no grace period for compliance. We outline the main changes since the draft guidelines were released for consultation in August last year.

So you've been ordered to an interview or to hand over documents?

19 February 2015

Most specialist regulators have broad powers to compel attendance at interviews and the production of documents. But there are limits to when and how such orders can be issued. A recent judgment from Australia sheds some light on this issue, while also confirming how difficult it is to mount a legal challenge against the exercise of these powers by a regulator.

Australia looks at new competition laws for powerful companies

24 September 2014

New controls on companies with market power are now in prospect in Australia. This proposal is one of the key recommendations in the draft report of the Harper Competition Review Panel. Should the Australian Government adopt this recommendation, there is a very good chance that New Zealand will follow suit as the New Zealand Commerce Commission has been pushing for similar changes here.

Court of Appeal carpet decision puts acid on advertisers

15 September 2014

The Court of Appeal judgment in a dispute between carpet manufacturers Godfrey Hirst NZ and Cavalier Bremworth makes clear that suppliers cannot rely on the fine print to correct, limit or qualify headline claims in warranties or advertisements.

New public interest test for anti-dumping regime?

12 June 2014

The Government is considering inserting a new public interest test into New Zealand’s anti-dumping and countervailing duties regime. Submissions are due by 30 June 2014.

What if we deep six section 36 and counterfactual? What then?

03 April 2014

Policy makers in New Zealand seem set to tackle section 36 of the Commerce Act – the competition law behemoth that is New Zealand’s prohibition against “monopolisation”.

Commissions gang up against counterfactual test

31 January 2014

The Productivity Commission has weighed in behind the Commerce Commission’s campaign to unseat the counterfactual test for determining misuse of market power under section 36 of the Commerce Act. Describing it as an “idiosyncratic approach”, the Productivity Commission is proposing that the section be reviewed in tandem with the “root and branch” review of Australia’s competition laws announced by the Abbott Government before Christmas.

NZ Commerce Commission on mission for tools upgrade

15 November 2013

The New Zealand Commerce Commission’s despair at the instruments available to it to prevent firms with substantial market power from using that power for anti-competitive purposes runs deep.

Commerce Commission guidelines on collaborative activity exemption

02 October 2013

The Commerce Commission yesterday issued draft Competitor Collaboration Guidelines with a view to having them finalised and ready to go before the Commerce (Cartels and Other Matters) Amendment Bill, now awaiting its second reading, is passed. How the new Act is applied, particularly the exemption for collaborative activitiesy, will be key to the new regime’s workability and responsiveness so it is important that the Commission gets this right. Submissions close on 12 November 2013. We are happy to help.

So what's new in the Commerce Commission's updated M&A guidelines?

01 August 2013

The Commerce Commission’s revised Mergers and Acquisitions Guidelines provide a useful dissection of the methodologies the Commission applies to M&A applications and much new substantive material, along with some minor changes in terminology.

Select committee fine tunes new cartel regime – and adds shipping

22 May 2013

The changes the select committee is recommending to the Commerce (Cartels and Other Matters) Amendment Bill are mostly small and should make the new cartel regime more predictable. The exception is the removal of international shipping’s exemption from the Commerce Act, which is strongly opposed by the international shipping industry.

Commerce Commission to review competition approach

12 March 2013

The Commerce Commission is reviewing its M&A and authorisations policies and has released draft guidelines for consultation. This is an important opportunity to give feedback on the Commission’s approach to competition law. There have been some significant decisions since the Commission last reviewed its processes, including The Warehouse case, Kotahi decision and the Australian Metcash case, so interest in the review should be high. Submissions are due to the Commission by Tuesday 9 April.

New Zealand electricity distribution sector consolidation - lessons from Canada

21 February 2013

The planned review this year by the New Zealand Electricity Authority into the efficiency of distribution network company arrangements will almost certainly address the issue of sector consolidation.

Civil pecuniary penalties - fair or unfair?

16 January 2013

Civil pecuniary penalties can be hefty and are being used increasingly in the major commercial statutes to drive compliance. This trend has raised hard questions about the State pursuing criminal law goals without affording those involved the protections which are usual in the criminal context. So a review by the Law Commission is timely.

'New Zealand Competition Law and Policy' updating service launched today

21 November 2012

Chapman Tripp is today pleased to launch New Zealand Competition Law and Policy, a new loose-leaf and on-line updating service, authored by partner, Matt Sumpter.

Forecourt attendants get raw deal

24 August 2012

In the run up to criminalisation of cartels, a story in today’s Waikato Times caught our eye. The reporter complains that 10% of petrol stations surveyed refused to divulge their prices although the prices were displayed on the forecourt. Among the reasons offered was that it was against company policy or against the law to share this information. The newspaper then went to the Commerce Commission, which contradicted the companies and said there was nothing to prevent them giving the price. The Commission may be technically correct but, in our view, could have been much more supportive of the attempts by the companies to draw some bright lines for their forecourt attendants to follow.

Safety instructions for the new cartel regime

06 August 2012

The new cartel regime, including criminal penalties, is now a step closer. The Commerce (Cartels and Other Matters) Amendment Bill went through its first reading last week and has been referred to the Commerce Committee with submissions due by 6 September 2012. But the proposed changes have already been widely consulted on so we think it is unlikely that the Bill will be much changed as a result of the select committee process. This Brief Counsel is designed to provide you with a user’s guide or safety manual for the legislation.

Competition and health services

02 March 2012

Liaising with your practice group colleagues and your peers is fundamental to ensuring New Zealanders receive excellent healthcare. But being a health professional providing important and indispensible services does not immunise you from the law governing competition in business.

Getting to know your competitors - how close is too close?

15 November 2011

Knowing what your competitors are up to helps inform your business strategy – but did you know that there are some things that you shouldn’t do in conjunction with your competitors – and which, if you did them, could expose you to large fines (and if a proposed new law is passed, to possible imprisonment)?

New Zealand's cartel legislation – a new model?

14 November 2011

If New Zealand manages to criminalise cartel conduct without inhibiting legitimate collaboration, Australia and those other jurisdictions which marched into this legislatively tricky terrain ahead of us will be able to take a lot of the credit. Yes, our policy-makers are learning from your mistakes.

Cover pricing in construction tenders: a risky business

19 October 2011

The ACCC had a recent win in a “cover pricing” case against a construction company and its managing director: the Federal Court found the company broke the law in providing a cover price to a competing bidder. The director was personally liable as an accessory to the breach. This development is especially important in New Zealand because the Commerce Commission has signalled it is keeping a close eye on construction industry bidding practices. All construction companies, and their directors and managers, should be aware of the risks of cover pricing.

Two year deferral of criminal sanctions in new cartel Bill

19 October 2011

The cartel criminalisation legislation introduced to the House last week proposes a phased approach in which criminal sanctions will be delayed two years to allow the market to get used to the new regime. This Brief Counsel looks at The Commerce (Cartels and Other Matters) Amendment Bill.

Loose lips sink ships - competition law limits on information exchange

22 June 2011

Swapping information with competitors has always been fraught with legal risk – and is about to get riskier in Australia and, potentially, in New Zealand if our Government follows Australia’s lead. This Brief Counsel looks at the proposed Australian reforms, summarises the current position in New Zealand and sets out some good practice guidelines to help businesses stay on the right side of the law.

The smoking gun - draft bill to criminalise cartels

20 June 2011

The Government has taken another step toward the criminalisation of cartels with the release last week of draft legislation. Submissions close on 22 July, 2011.

Chapman Tripp Partner wins J.F. Northey Memorial Book Award

17 June 2011

Chapman Tripp Partner Matt Sumpter has won this year’s J.F. Northey Memorial Book Award at the Legal Research Foundation Annual Writing Awards.

Commerce Commission raises awareness on bid rigging

13 September 2010

The Commerce Commission has produced guidelines to assist purchasers to recognise and combat bid rigging.

Supreme Court sets seal on competition law

01 September 2010

The Supreme Court’s judgment today in The Commerce Commission v Telecom on Telecom’s 1999 dial-up internet package definitively confirms the test for liability under section 36 of the Commerce Act 1986. This Brief Counsel draws the salient points from the decision.

Criminalisation of cartels

26 August 2010

The proposed criminalisation of cartels makes the optimal design of competition law policy and enforcement an even more significant issue than it might otherwise be.This paper explores what will no doubt be a controversial proposition.

The (not so) long arm of the Commerce Commission

28 April 2010

The Supreme Court has established that the Commerce Act does not extend to overseas conduct by a person who isn’t resident or carrying on business in New Zealand, except in particularly limited circumstances.

PODCAST: Criminalisation of cartels - the right course of action?podcast

22 February 2010

Grant David talks to Linda Clark on MED's proposal to criminalise cartels.

Paremoremo anyone? Cartel criminalisation on the cards

03 February 2010

In our view, there are questions around whether the case for criminalisation has been made. But irrespective of whether New Zealand does decide to criminalise, the consultations provide the platform for a robust and thorough debate on the design of the current provisions, including how we define a cartel and what conduct should be exempted. Submissions are due by 31 March.

US Court to revisit antitrust law on JVs

14 December 2009

Next month, in American Needle Inc v National Football League Inc (No 08/661), the US Supreme Court is expected to revisit its earlier cases on joint ventures and the extent to which they should be protected under competition law.

The cost of the weekly shop: can anything be done?

14 December 2009

It was news that was hard to miss. The cost of groceries in New Zealand has risen 42.5% over the last ten years, giving us some of the most expensive food in the OECD. Only South Korea has experienced higher price rises. And, as always, the questions are who’s to blame and what can be done?

Cartels: in the regulatory gun

14 December 2009

Get done for engaging in a cartel in Australia now and you could finish up behind bars. Next year, our politicians will be debating whether we should introduce a similar regime here. Already we have serious penalties under the Commerce Act and a Commerce Commission with an itchy trigger finger. Cartels are in the regulatory gun – but do businesses truly know what sorts of behaviours could expose them to risk?

Failing firms

14 December 2009

For businesses in financial difficulty a prompt sale to a competitor is often the best way forward, allowing the business to exit the market and recover some of its losses in the process. In such circumstances, the merger parties may need to rely upon the ‘failing firm’ argument to avoid falling foul of the Commerce Act.

Misuse of market power

14 December 2009

2009 saw the prohibition on misuse of market power (section 36 of the Commerce Act) regain some prominence in competition law litigation. Iconic for its difficulty and controversy more than for its utility, some aspects of section 36 were confirmed and some new boundaries explored.

Trans-Tasman harmonisation

14 December 2009

When politicians look to make progress on the alignment of trans-Tasman laws toward a single economic market, for some reason competition law is seen as low hanging fruit. Perhaps this is because “common sense” would indicate that the principles of competition should be the same on both sides of the Tasman. But the lesson from 2009 is that we need to be careful about following the Australian example.

Limitation period under Fair Trading Act clarified

04 December 2009

The Supreme Court judgment in Commerce Commission v Carter Holt Harvey provides important guidance on the applicable limitation period for civil claims brought for breach of the Fair Trading Act 1986. This Brief Counsel looks at the Supreme Court’s decision, how it has clarified the law, and what it means for claimants and defendants in Fair Trading Act litigation.

Boss can watch you at home

08 July 2009

If you thought secret cameras in the ceiling, tracking devices under the car and bugs in the phones were the preserve of drug barons, you're reckoning without the Search and Surveillance Bill introduced to the House last week.

Rules for when you want to say you're green

06 March 2009

Proud of your company’s environmental credentials and wanting to brand yourselves as “green”? You will need to be aware of the standards of behaviour the Commerce Commission expects in this area – and has set down in two sets of guidelines.

Commerce Commission v The Warehouse Limited

06 March 2009

A recent decision of the Auckland District Court shows the courts' increasing willingness to impose large penalties for breaches of the Fair Trading Act in cases where the defendant is a large corporate, and there is a perceived need to deter future breaches. In this case total fines of more than $200,000 were imposed in respect of a number of unrelated charges concerning misleading advertising/labelling of consumer products.

Competitor relations – how to have them without jumping the gun

06 March 2009

A recent internal report reveals the Commerce Commission's view of how competitors should deal with each other to avoid falling foul of the Commerce Act.

PODCAST: Is the Commerce Commission still relevant? podcast

09 February 2009

Chapman Tripp partner Grant David believes competition law and the Commission has lost its way and he’s calling for a fundamental review. He talks to Linda Clark.

Do we still need a Commerce Commission?

05 February 2009

If the Government is serious about disciplining its spending and stopping growth in bureaucracy, as Treasury recommends, the on-going relevance of the Commerce Commission must become a matter for immediate debate.

The Warehouse question heads to the Supreme Court

18 August 2008

Woolworths announced it will seek leave to appeal the recent Court of Appeal judgment in The Warehouse litigation. The Court of Appeal affirmed the Commerce Commission's decision to decline a clearance to either the Woolworths or Foodstuffs supermarket chains to purchase The Warehouse.

Price control now has some appeal

01 August 2008

The Commerce Amendment Bill fundamentally reforms the regulatory control provisions in the Commerce Act 1986, with the aim of establishing a more credible and certain control regime in markets where competition is not possible.

Smart metering: two cautionary tales

07 July 2008

Meter markets now include smart metering technology, opening up a growing area of differentiation and competitive conduct between energy firms, which can involve competition law issues, says Gary Hughes of Chapman Tripp.

Appeal Court puts liability cat amongst merger pigeons

01 July 2008

Appeal Court puts liability cat amongst merger pigeons; Bundling discounts; 0867: Remembering dial-up, and reinforcing the counterfactual test.

Bundling discounts

01 July 2008

Some recent developments have brought greater certainty to the question of how bundle discounts should be treated in competition law. In particular, the Commerce Commission has set out the way it will analyse bundle discounts.

0867: Remembering dial-up, and reinforcing the counterfactual test

01 July 2008

Around the turn of the century, the Commission claimed that Telecom’s decision to introduce a free internet access number range (0867 xxx xxx), while implementing a charge for residential local number dial-up access to the Internet, was a breach of s36 of the Commerce Act.

The Warehouse – awaiting the Court of Appeal decision

02 May 2008

In June 2007 the Commerce Commission denied clearance to both Woolworths and Foodstuffs to acquire The Warehouse. That decision was overturned by the High Court in November. The Commission now appeals to the Court of Appeal.

Thinking about an acquisition in the retail sector?

18 April 2008

The recent decision from the Commerce Commission on Whitcoulls’ application for clearance to acquire Borders provides us with some insights into how the Commission might look at other mergers and acquisitions in the retail sector.

Analysis of retail mergers getting narrower still?

14 April 2008

Analysis of retail mergers getting narrower still? Greenwash marketing – the latest deadly sin; Fair Trading Act assault on retailer marketing continues.

Greenwashing: the latest “deadly sin”?

14 April 2008

You can tell that an issue is topical when the Vatican adds it to the list of deadly sins. “Polluting the environment” now appears to sit alongside envy and lust. But if polluting is reviled behaviour, what about falsely claiming that your product is “environmentally friendly”?

Fair Trading Act assault on retailer pricing claims

14 April 2008

One of the most important phrases in a marketer’s lexicon is that a product is “on sale”, or its variants “special” or “20% off”. The reason is simple: pricing and the notion of a discount or bargain is the most powerful – and sometimes the only – factor in consumers’ purchasing process.

Beware the comity of trans-Tasman nations: Australia's hunt for cartel criminals extends overseas

07 March 2008

Australia's competition laws are about to get tougher; criminalising cartels and imposing jail sentences on anyone found guilty.

When in doubt – regulate

01 July 2007

The two key devices in the Commerce Act for moderating the conduct of business bullies are: the section 36 prohibition on the taking advantage of market power; and the powers under Part 4 relating to the imposition of price control.

Submissions on MED discussion paper

13 February 2007

We welcome the opportunity to participate in the MED’s Review of the Commerce Act clearance and authorisation provisions (Review). As part of our process of responding to the Review we hosted a roundtable discussion attended by executives of major New Zealand businesses representing a diverse range of industries. In this submission we put forward some suggestions for improvements in the clearance process, which resulted from the roundtable discussion.

Fair Trading – tougher enforcement across the board

19 April 2006

2006 may be developing into the year when Fair Trading Act enforcement steps into the limelight. A record fine has been imposed in the banking sector in recent weeks, and more cases involving disclosure of credit card fees remain before the courts.

Regulator taking its time

19 April 2006

Friction has been created between the business community and the Commerce Commission in recent months over an increasingly aggressive enforcement approach, coupled with slow turnaround times in dealing with merger clearance applications.

Stretching the bounds of price fixing?

19 April 2006

The New Zealand Commerce Commission, like its counterpart regulators overseas, has declared open warfare on cartels. It has just secured a record $3.6 million penalty against Koppers Arch companies in the timber chemicals industry.