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Facilitating practices, vertical restraints and most favoured customers: Australian competition law is ill-equipped to meet the challenge

Brent Fisse
(2016) 44 Australian Business Law Review 325



Facilitating practices are prevalent in commerce. So are most favoured customer restraints. The effects of such practices and restraints can be pro-competitive or anticompetitive. They have come under increased scrutiny by competition regulators and commentators. Australian competition law is not well-equipped in this area. The provisions of the Competition and Consumer Act 2010 (Cth) relating to cartels, anticompetitive agreements, misuse of market power and resale price maintenance are prone in this context to undue overreach, underreach and uncertainty. Most of the flaws and gaps identified would not be remedied by adoption of the recommendations for amending the CCA made by the recent Harper Review. Responsive solutions are proposed.