My competition law publications

Julie Clarke, International Merger Policy: Applying Domestic Law to International Markets, Edward Elgar Publishing (April 2014)
Publisher description: International Merger Policy offers a compelling comparative assessment of domestic and regional merger laws and procedures. Identifying important areas of convergence and emerging best practice, it considers existing levels of international cooperation and identifies the key costs associated with transnational merger review before evaluating possible mechanisms by which they might be reduced.

Clarke, Corones and Clarke, Competition Law and Policy: Cases and Materials (3rd edn, OUP, July 2011)
Publisher description: 'Competition Law and Policy: Cases and Materials outlines and evaluates Australian competition law and its policy rationale. This fully revised third edition draws together a comprehensive collection of material, providing an excellent and up-to-date guide to Australian competition law and current proposals for change.

The book begins with an overview of Australia’s competition policies and goals and of the evolution of its common law. The text then systematically discusses the principle forms of anti-competitive conduct engaged in by firms. Finally, it looks at the uniquely Australian concepts of authorisation and access and the sanctions imposed for breaches of competition law.'

The International Regulation of Transnational Mergers (PhD Thesis, Qld UT, 2010)
Abstract: Transnational mergers are mergers involving firms operating in more than one jurisdiction, or which occur in one jurisdiction but have an impact on competition in another. Being of this nature, they have the potential to raise competition law concerns in more than one jurisdiction. When they do, the transaction costs of the merger to the firms involved, and the competition law authorities, are likely to increase significantly and, even where the merger is allowed to proceed, delays are likely to occur in reaping the benefits of the merger. Ultimately, these costs are borne by consumers. This thesis will identify the nature and source of regulatory costs associated with transnational merger review and identify and evaluate possible mechanisms by which these costs might be reduced. It will conclude that there is no single panacea for transnational merger regulation, but that a multi-faceted approach, including the adoption of common filing forms, agreement on filing and review deadlines and continuing efforts toward increasing international cooperation in merger enforcement, is needed to reduce regulatory costs and more successfully improve the welfare outcomes to which merger regulation is directed.

Caron Beaton-Wells and Julie Clarke, 'Corporate Financial Penalties for Cartel Conduct in Australia: A Critique' in Pamela Hanrahan and Ashley Black (eds), Contemporary Issues in Corporate and Competition Law: Essays in Honour of Professor Robert Baxt AO (LexisNexis Butterworths 2019) (Chapter 6)
Publisher blurb: 'Contemporary Issues in Corporate and Competition Law: Essays in Honour of Professor Robert Baxt AOis a festschrift honoring noted academic Professor Robert Baxt AO. A collection of essays by noted authors and academics on current issues in corporate and competition law, this text provides a scholarly discussion of current issues in corporate and competition law.''

Caron Beaton-Wells and Julie Clarke, ‘OECD-Inspired Reform: The Case of Corporate Fines for Cartel Conduct’ in Nicolas Charbit and Sonia Ahmad (eds), Frédéric Jenny: Standing Up for Convergence and Relevance in Antitrust, Liber Amicorum Volume 1 (Institute of Competition Law, 2018)
Publisher blurb: '... This collection of 21 articles celebrates Dr. Jenny’s career thus far, and also explores other timely and topical areas of competition law and policy.'

Julie Clarke and Barbora Jedličková 'Australia' in Pierre Kobel, Pranvera Këllezi and Bruce Kilpatrick (eds) Antitrust in Pharmaceutical Markets & Geographical Rules of Origin, LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition, Springer Publishing (June 2017) ch 2 (ISBN 978-3-319-55812-7)
Publisher blurb: '... The first part discusses the application of competition law in the pharmaceutical sector, which continues to be a focus for anti-trust authorities around the world. A detailed international report explores the extent to which the application of the competition rules in the pharmaceutical sector should be affected by the specific characteristics of those products and markets (including consumer protection rules, the need to promote innovation, the need to protect public budgets, and other public interest considerations). It provides an excellent comparative study of this complex subject, which lies at the interface between competition law and intellectual property law.'

Barbora Jedličková, Julie Clarke and Sitesh Bhojani, 'Australia' in Bruce Kilpatrick, Pierre Kobel and Pranvera Këllezi (eds) Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights, LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition, Springer Publishing (2016) pp 43-76
Publisher blurb: 'This book provides and unparalleled comparative analysis of two "hot topics" in the field of antitrust and unfair competition laws with regard to a number of key countries. The first part of the book examines the consistency and compatibility of transactional resolutions of antitrust proceedings (such as settlement procedures, leniency programmes and commitments) with due process and the fundamental rights of the parties. This is a particularly important topic, given the widespread adoption of these procedures by anti-trust authorities worldwide. The individual chapters consider how the leniency, settlement and commitments procedures have developed across a range of jurisdictions, and discuss the extent to which checks and balances have been applied in those national procedures in order to safeguard the fundamental rights of the parties involved. A detailed international report identifies general trends and highlights the differences between and most interesting features of national regulations.'

Julie Clarke, 'Current Issues in Merger Law' in John Duns, Brendan Sweeney and Arlen Duke (eds) Comparative Competition Law, Research Handbooks in Comparative Law, Edward Elgar (November 2015) (Hardback 978 1 84980 419 6)
Comparative Competition Law examines the key global issues facing competition law and policy. Taken together, the specially commissioned, original chapters by leading writers from the United States, Europe, Japan, India, China, South America, and Australia provide a synthesis of how these current issues are dealt with by drawing on approaches taken in different jurisdictions. Contributors include: R.L. Smith, A. Merrett , J. Clarke, G. Hay, M. Carrier, E. Buttigieg, G.C. Shaffer, N.H. Nesbitt, S.V. Walle, T. Shiraishi, W. Zheng, J. Tapia, A. Ditzel, D. Crane, K. Klovers, A. Speegle, G. Shaffe, S. Waller, L. Cejnar

Barbora Jedličková and Julie Clarke, 'Australia' in Pierre Kobel, Pranvera Këllezi and Bruce Kilpatrick (eds) Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social Responsibility, LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition, Springer Publishing (2015)
Publisher blurb: 'The book provides an analysis of the grocery retail market in a very large number of countries with an international report written by an economist. The second part of the book offers the analysis of liability issues in relation to non-compliance with CSRs with an international report by a British barrister. Both topics are very timely.'

Caron Beaton-Wells and Julie Clarke, ‘Deterrent Penalties for Corporate Colluders: Lifting the Bar’ (2018) 37(1) University of Queensland Law Journal 107-125
'A critical review of corporate pecuniary penalties for cartel conduct in Australia is timely if not overdue. Debates about the role of individual sanctions notwithstanding, financial penalties against corporations remain the predominant means of sanctioning cartel conduct in this country as elsewhere. These sanctions are therefore the primary mechanism by which deterrence is sought to be achieved. Consistent with the international position, deterrence has long been accepted as the primary, if not exclusive, rationale for cartel sanctions in Australia.'

Julie Clarke, ‘Section 46: its purpose and the proposed new effects test’ (2017) 45(5) Australian Business Law Review 364-386
The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Cth) will give effect to the Harper Report recommendation to introduce an effects test for Australia’s misuse of market power prohibition to replace the existing purpose-based test. Commencement of the effects test is contingent on the passage of the Competition and Consumer Amendment (Competition Policy Review) Bill 2016. This proposed change has generated more political debate and public commentary than any other aspect of the proposed Harper reforms. This article examines the convoluted process that has led to the introduction of the effects test, before identifying the object of Australia’s misuse of market power law and examining the existing and proposed laws against that objective. It concludes that the existing law is misdirected as a matter of policy and is ineffective in practice. The proposed law will, by removing the “take advantage” element and shifting the focus from competitors to competition, be more aligned with the object of the provision and with international best practice.

Julie Clarke, ‘The Opinion of AG Wahl in the lntel rebates case: A triumph of substance over form?'’ (2017) 40 World Competition Law and Economics Review 421-270
Rebates are a ubiquitous form of price competition which can be utilized either to intensify or to harm competition. Distinguishing pro-competitive from anti-competitive rebates and translating this into effective and administrable legal rules, remains a key challenge for competition law. The recent Opinion by Advocate General Wahl in the Intel appeal has identified deficiencies in the legal approach to dominant firm rebates under Article 102 TFEU and has proposed a ‘more economic’ case-by-case approach to their assessment. The proposed approach and the attempt by AG Wahl to reconcile it with existing case-law, raises a number of important questions for consideration by the European Court of Justice. This article examines AG Wahl’s Opinion and suggests that, while the substance of the proposed approach has merit, the form proposed is deficient in a number of respects.

Julie Clarke, ‘The increasing criminalization of economic law – a competition law perspective’ (2011) 19(1) Journal of Financial Crime 76-98
The purpose of this paper is to examine the trend towards the criminalization of hard core cartel conduct and to consider the appropriateness and effectiveness of extending the criminal law to this conduct. In addition, it will consider some of the legal implications, including the exposure of directors of companies to potential racketeering charges.

Julie Clarke, 'Running a Cartel? Go Directly to Jail' (May 2010) Law Institute Journal 52
Overview of Australia's new criminal cartel laws.

Julie Clarke, 'Australia's Radical Predatory Pricing Reforms: What business must know' (2008) 1 Deakin Business Review 6
Critical look at the 2007 Birdsville Amendments

Julie Clarke, 'Australia's Radical Predatory Pricing Reforms: What business must know' (2009) 1(2) Competition Law Reports 86-92 (India)
Critical look at the 2007 Birdsville Amendments (with 2009 updates)

Julie Clarke, ‘Multi-jurisdictional merger review procedures: a better way’ (2006) 14 Trade Practices Law Journal 90-109
Corporate mergers whose effects transcend national borders have faced increasing regulation over the past few decades as more jurisdictions have developed merger laws and imposed pre-merger notification requirements. The level of regulatory response to multi-jurisdictional mergers is likely to continue to increase as even more jurisdictions contemplate the introduction of competition laws. This level of regulation now goes beyond that required to protect national economies from potentially harmful mergers and has seen burgeoning costs to business, regulators and, ultimately, the public. In recognition of this, the relatively newly formed International Competition Network has placed merger regulation at the forefront of its agenda for greater harmonisation and cooperation in competition law. This has seen, over the past three years, the development of a set of guiding principles and recommended practices for merger notification procedures designed to reduce the regulatory burden. This article evaluates these recommendations and discusses areas for further reform.

Julie Clarke, Criminal Penalties for Contraventions of Part IV of the Trade Practices Act (2005) 10 Deakin Law Review 141
In 2003 the Dawson Committee, commissioned by the Government, recommended that criminal penalties should be introduced for cartel conduct. The Government accepted this recommendation in principle and set up a working party to consider the implementation difficulties that had been identified in the Dawson Report. Nothing further was heard from the Government until February 2005 when the Government announced that it would introduce criminal penalties for serious cartel conduct. This paper evaluates the Government proposals and makes suggestions for their implementation.

Julie Clarke, 'The Dawson Report and Merger Regulation' (2003) 8(2) Deakin Law Review 245
The Dawson Report, released by the federal Government in April, recommended significant change to merger regulation in Australia. While retaining the substantial lessening of competition test, the Report calls for change to the merger clearance and authorisation processes. The recommendations have received the support of the Government and big business, but have attracted criticism from the ACCC, small business and consumer groups. This paper will critically discuss the recommendations in light of the public submissions made to the Review.

Julie Clarke and Mirko Bagaric, 'The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act' (2003) 31 Australian Business Law Review 192-209
Abstract: Following the introduction of criminal sanctions, including jail terms, for hard core cartelisation in the United Kingdom, the Dawson Review has recently recommended that criminal penalties be introduced in Australia for individuals and corporations found to have engaged in hard core cartels. A number of reasons have been advanced to justify the introduction of criminal sanctions for this type of conduct, the most common of which are that it would bring Australia in line with other competition regimes and that criminal sanctions are more likely to provide an effective deterrent. This article evaluates those reasons, and others, to determine whether there is any adequate justification for the proposed criminal regime.

Philip Clarke and Julie Clarke, ‘Players, Clubs, Events and the Trade Practices Act:  A Primer for Sporting Clubs’ (2003) 6(2) Sport Management Review 169-184
The Trade Practices Act (TPA) has had an enormous impact on how corporations in Australia may conduct their business. In relation to sporting clubs, it limits the freedom of clubs to deal with players, each other and the public. While previously many clubs may have escaped the ambit of the TPA because they were not "corporations", state equivalent Fair Trading legislation and the introduction of the national competition policy in 1995 have effectively expanded the scope of consumer and competition regulation to include individuals and associations. Consequently, an understanding of the nature and scope of trade practices regulation is now important for any sporting organisation – regardless of size or structure. This paper identifies the legislative provisions most likely to impact upon sporting clubs and examines some possible circumstances in which clubs might find themselves exposed to liability.

Julie Brebner, ‘The Relevance of Import Competition to Merger Assessment in Australia’ (2002) 10(2) Competition and Consumer Law Journal 119-143
Abstract: The Australian Competition and Consumer Commission has been criticised for failing to take due account of the impact import competition has on domestic firms when assessing whether or not a proposed merger will be likely to substantially lessen competition.  This paper reviews the approach taken by the Commission to import competition in its merger assessments.  Consideration is given to both the policy adopted by the Commission and the statistical relevance that has, in fact, been placed on import competition in merger assessment. A conclusion is then drawn as to the appropriateness of the Commission’s current policy and practice.

Julie Brebner, 'Resale Price Maintenance - The Need for Further Reform' (2001) 9 Trade Practices Law Journal 18
Abstract: The Competition Policy Reform Act 1995 (Cth) extended the resale price maintenance provisions of the Trade Practices Act 1974 (Cth) to include services, and provide for authorisation where the conduct can be shown to benefit the public such that it should be allowed. This article explores the scope of these changes and their shortcomings. It also seeks to provide some guidance as to their likely application, and makes recommendations for further reform.

The Full Federal Court Dismisses the Pfizer Appeal (2018) 26(3) Australian Journal of Competition and Consumer Law 213
The full Federal Court recently handed down its long-awaited decision in the Pfizer competition case. The Court dismissed the appeal by the Australian Competition and Consumer Commission (ACCC) against Flick J's decision that Pfizer did not misuse its market power or engage in prohibited exclusive dealing in the lead-up to the expiry of its patent over the blockbuster cholesterol-lowering drug, atorvastatin, marketed by Pfizer as "Lipitor". This note examines the key aspects of the decision and its implications for the strategies employed by pharmaceutical companies as their patents approach expiration.

Extra-territoriality and markets "In Australia" (2017) 25(4) Australian Journal of Competition and Consumer Law 292-300
Competition law cases before the High Court are relatively rare. Cartel rulings from the High Court are rarer still. It is therefore notable that the High Court has made two determinations in relation to cartel conduct in the past 12 months. ...

Australia: Harper Reforms (2018) 39(5) European Competition Law Review (forthcoming)
On 6 November 2017 significant reforms to the Competition and Consumer Act 2010 (the CCA) commenced. These were contained in two Acts of Parliament: the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (MMP Act) and the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (CPR Act) which, together, represent the culmination of a major independent policy review (the Competition Policy Review) that reported in 2015. 

The two most significant reforms involve the introduction of a new prohibition on concerted practices and reform of the misuse of market power provision.

...

Australia: Anti-competitive agreements (2017) 38(12) European Competition Law Review N-134-N135
The Japanese shipping company, Nippon Yusen Kabushiki Kaisha (NYK), recently became the first company to be convicted and fined for cartel conduct under criminal cartel laws introduced in Australia in 2009.

The case was not contested by NYK, who pleaded guilty early and co-operated with the Australian Competition and Consumer Commission (ACCC) (who initiated the investigation and referred the matter to the Commonwealth Department of Public Prosecutions (CDPP)) and the CDPP who ultimately charged NYK with a cartel offence.

Despite the fact that the charge of engaging in cartel conduct was not contested, the reasons for the judgment of Wigney J offer important insight into the seriousness with which the courts will treat cartel offences and the factors relevant to determination of an appropriate fine. ...

Australia: Anti-competitive agreements (Air Cargo) (2017) 38(11) European Competition Law Review N-133-N134
On 14 June 2017 the High Court of Australia (Australia’s highest court) dismissed appeals by Air New Zealand Ltd and PT Garuda Indonesia Ltd (the airlines) concerning claims of collusion in respect of international air cargo surcharges and other fees. The focus of the appeal was not on whether collusion occurred, but rather whether it occurred in a “market in Australia”. The High Court unanimously held that it did, notwithstanding that the decision as to choice of airline (the “switching decision”) took place at the country of departure, outside Australia.

Australia: Mergers (2017) 38(11) European Competition Law Review N-133-N134
On 22 June 2017 the Australian Competition Tribunal (Tribunal) authorised the proposed acquisition by Tabcorp Holdings Ltd (Tabcorp) of Tatts Group Ltd (Tatts). Tabcorp and Tatts are two of Australia’s largest gambling companies. The authorisation was granted on public benefit, rather than competition, grounds.

The Federal Court of Australia rules against submissions on agreed penalties (Fair Work Building Industry Inspectorate / Construction, Forestry, Mining and Energy Union), e-Competitions Bulletin June 2015, Art. N° 73596
On 1 May 2015 the Full Court of the Federal Court of Australia ruled that it was not permissible for parties to make joint submissions as to the appropriate ‘pecuniary penalty’ to be imposed: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59 (1 May 2015) (CFMEU). This decision has significant implications for the existing common practice of the Australian Competition and Consumer Commission (ACCC) and respondents to make agreed joint submissions as to appropriate pecuniary penalties in competition law cases.

The Australian Competition and Consumer Commission grants first resale price maintenance authorisation to a power tools manufacturer (Tooltechnics), 5 December 2014, e-Competitions Bulletin March 2015, Art. N° 72020
On 5 December 2014 the Australian Competition and Consumer Commission (ACCC) granted its first authorisation in relation to resale price maintenance (RPM). RPM is per se prohibited in Australia. Although an authorisation (exemption) mechanism for RPM, determined on public benefits grounds, has been available in Australia since 1995, this application was the first to be made to the ACCC.

The Federal Court of Australia finds no breach of legislation in air cargo cartel case on ground that it did not involve a ‘market in Australia’ (Air New Zealand), 31 October 2014, e-Competitions Bulletin December 2014, Art. N° 70608
The Australian Federal Court recently handed down a decision relating to the international air cargo cartel (the Air NZ case). Despite finding that the defendants, Air New Zealand Limited (Air NZ) and PT Garuda Indonesia Ltd (Garuda), had engaged in price fixing conduct which might have affected prices in Australia, Justice Perram held that there was no contravention of Australian competition law because the conduct did not take place in a ‘market in Australia’.

Australian Competition Tribunal grants first direct merger authorisation (Macquarie Generation, AGL Energy) (18 September 2014, e-Competitions (N° 68908, www.concurrences.com))
On 25 June 2014 the Australian Competition Tribunal (Tribunal) handed down its first direct authorisation decision, approving the AU$1.505 billion acquisition by AGL Energy Limited of the assets of Macquarie Generation (MacGen), a state-owned corporation (AGL-MacGen). The authorisation decision followed advice from the Australian Competition and Consumer Commission ( ACCC) that it would oppose the proposed deal. The Tribunal disagreed with the ACCC’s assessment of the likely anti-competitive impact of the merger and also considered that there were public benefits associated with the proposal that justified allowing it to proceed. On 3 Sept 2014 AGL announced it completed the $1,505 million acquisition of MacGen assets from the NSW Government. (view on Concurrences)

Philip Clarke and Julie Clarke, ‘Resale Price: Australian Experience and Perspectives’ (CPI Antitrust Chronicle, October 2013)
The prohibition of RPM occupies a special position in Australian competition law. It was the first anticompetitive practice to be specifically outlawed when Australian competition law commenced in earnest in the 1970s, is a per se offense, has been expanded in scope rather than curtailed, and, unlike most other jurisdictions, is not inhibited by the requirement that there be an agreement to fix a resale price. As result, it is a powerful prohibition that applies to unilateral conduct designed to achieve RPM as well as RPM agreements between suppliers and retailers.

Julie Clarke, 'The Australian Competition and Consumer Commission releases new authorisation guidelines' (12 September 2013, e-Competitions)
In June 2013 the ACCC released new Authorisation Guidelines . These replace the 2007 Guide to Authorisation (as updated by a 2011 addendum) and reflect the current approach taken by the ACCC to authorising otherwise anti-competitive conduct.

Julie Clarke, 'The Federal Court of Australia hands down its first decision involving a bid rigging case after the entry into force of new cartel laws (Norcast v Braken)' (6 May 2013, e-Competitions) (download PDF document)
In July 2009 Australia’s new cartel laws entered into force. On 19 March 2013 the Federal Court of Australia (Gordon J) handed down its first decision involving these new laws.

Julie Clarke, 'The Australian Competition Tribunal ‘undeclares' third party access for rail lines company applying ‘private profitability' test to 44H(4)(b) (The Pilbara Infrastructure Pty)' (8 February 2013, e-Competitions, N°51089, www.concurrences.com)
On 8 February 2013 the Australian Competition Tribunal (Tribunal) handed down its decision in Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd. This brought to an end a long running legal dispute over third party access to Rio Tinto’s rail lines in the Pilbara region of Western Australia.

Julie Clarke, 'Fortune Telling: Australian Competition Law in 2013' (CPI Antitrust Chronicle, 15 January 2013)
"Trying to predict the future is like trying to drive down a country road at night with no lights while looking out the back window." Predicting the path of Australian competition law in 2013 may be more difficult still. It is an election year in Australia and, if history is any guide, this will generate some populist political promises, frequently at odds with sound competition policy. Political debate is likely to focus on the need, or otherwise, for a major review of Australia's competition laws and see philippics over who's policies are most likely to support small business, or curtail the market power allegedly enjoyed by big supermarkets, banks, and petrol companies. ...