Introduction & legislation Clause Samples

Introduction & legislation. The Combines Investigation Act of 1910 introduced the Canadian prohibition of monopolization, as it was then called. The prohibition remained largely unchanged until the entry into force of the Canadian Competition Act (CA) in 1986.1055 The law prior to 1986 contained mainly criminal sanctions that also 1051 Ibid., per ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇, at 159: ‘the Act has never contained any specific and comprehensive prohibition of a practice of cutting prices to below cost’. 1052 Ibid., per ▇▇▇▇▇▇▇ ▇▇ and ▇▇▇▇▇▇▇▇ J, at 122-­‐123. 1053 Ibid., at 70. 1054 ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 1990, supra note 1024. 1055 ▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇ & ▇.▇. ▇▇▇▇▇▇▇▇▇, The Law and Economics of Canadian Competition Policy, Toronto, Buffalo & London: University of Toronto Press 2003, at 504. applied to unilateral anti-­‐competitive conduct such as predation. Because of weak criminal enforcement, the abuse of dominance is currently targeted by a non-­‐criminal sanction regime. I shall focus on the law post-­‐1986.

Introduction & legislation. In Australia, Section 46(1) of the Competition and Consumer Act 2010 (CCA), formerly known as the Trade Practices Act 1974, prohibits a corporation with (i) a substantial degree of power in a market, to

Introduction & legislation the Singaporean Competition Act (SCA), as of January 2006, prohibits the abuse of a dominant position in Singapore. Section 47(2) SCA provides a non-­‐exhaustive list of examples of abusive conduct: • ‘predatory behaviour towards competitors; • limiting production, markets, or technical development to the prejudice of consumers; • applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; • making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts’. Apart from the suggestion in Section 47(2)(d) SCA that the ‘nature’ or ‘commercial usage’ can justify a tying arrangement, Section 47 contains no general reference to justifications of otherwise abusive 1116 For an examination of Singaporean competition law, see below. See also the UK Competition Act 1998. conduct. The SCA does, however, provide various exclusions of the competition rules insofar they are related to conduct required by the government. The Third Schedule of the SCA excludes certain activities from the scope of Section 47 SCA. The Schedule contains a general reference to services of general economic interest, but also refers to specific activities such as the supply of piped potable water. In addition, the Third Schedule of the SCA makes clear that Section 47 SCA does not apply in the following cases: (i) if the conduct seeks to comply with a legal requirement, or (ii) if the Singaporean Minister for Trade and Industry has issued an order indicating that the conduct is necessary for exceptional and compelling reasons of public policy. Such ‘State action’ provisions show that the Singaporean executive plays an important role in determining the SCA’s scope of application. The absence of an enumeration of the applicable legal conditions suggests that the legislator has attempted to provide the executive with ample discretionary powers, similar to the statutory text in Hong Kong. This may risk arbitrary application. Policy guidelines may be able to improve legal certainty and, in draft, could ▇▇▇▇▇▇ a debate on what kind of conduct should (or should not) be condoned in the name of public policy. As the statutory text of the SCA provides little guidance on objective justification, it is wise to turn to different sources. The Competition Commission of Singapore (CCS), ...