The competition law analysis of collaborative structures

Andrew Harpham, Donald Robertson and Philip L Williams
(2006) 34 ABLR 399

Abstract

Collaborative activity is ubiquitous and many forms of collaborative activity involve arrangements to do with prices or arrangements that may contain provisions which exclude competition. For many of these arrangements, it is not clear whether they fall within those contraventions of the Trade Practices Act 1974 (Cth) which do not depend for their operation on a substantial anti-competitive effect (the so-called per se contraventions). When con- fronted by these difficult cases, the courts should first examine the conduct at issue to discover “what is really going on”. The reasoning in the decision of Lockhart J in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437, provides a lead. If the conduct is of a kind that is obviously monopolistic, it should be characterised as falling within the per se prohibition. If it is not of that kind, it should not be so characterised and, in this latter case, should only be condemned if it substantially lessens competition. This article examines the concept of screening devices, in particular the doctrine of ancillary restraints, as a means

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