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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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)?
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.
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.
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.
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.
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.
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.
13 September 2010
The Commerce Commission has produced guidelines to assist purchasers to recognise and combat bid rigging.
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.
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.
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.
22 February 2010
Grant David talks to Linda Clark on MED's proposal to criminalise cartels.
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.
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.
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?
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
01 July 2008
Appeal Court puts liability cat amongst merger pigeons; Bundling discounts; 0867: Remembering dial-up, and reinforcing the counterfactual test.
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.
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.
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.
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.
14 April 2008
Analysis of retail mergers getting narrower still? Greenwash marketing – the latest deadly sin; Fair Trading Act assault on retailer marketing continues.
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”?
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.
07 March 2008
Australia's competition laws are about to get tougher; criminalising cartels and imposing jail sentences on anyone found guilty.
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.
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.
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.
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.
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.