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Statutory undertakings: Their history, use and utility and the perspective of the court

Justice Alan Robertson
(2015) 22 Competition and Consumer Law Journal 181



Since the introduction of s 87B in 1992, statutory undertaking provisions have proliferated, both in Australia and abroad. This article examines the history and uses of statutory undertakings before considering the way in which they have been approached by the courts. While only a small number of cases have been brought under s 87B and its analogues, those cases have addressed a number of important issues, including: the scope of the regulator’s power to accept or vary undertakings; factors going to the courts’ discretion in making enforcement orders; the nature of third party interests in acceptance and variation; the proper approach to the construction of undertakings; and the scope of the courts’ power to make orders in the event of a breach.