The Vodafone/Sky Decision and Vertical Mergers in New Zealand

• Date: 01 December 2021
• Published date: 01 December 2021
• Author: Paul Scott
• DOI: 10.1177/0003603X211044907

Symposium: The Evolution of Competition Law and Policy in New Zealand

The Vodafone/Sky Decision

and Vertical Mergers

in New Zealand

Paul Scott*

Abstract

As Professor Ahdar’s text shows, New Zealand’s competition law has undergone an evolution. Views

on various practices have changed and this led to academic disagreements. One area, however, has

been free from any controversy and that is vertical mergers. The reason is not uniformity of philo-

sophy—but rather more prosaic. New Zealand has not had any cases. This changed with the Vodafone/

Sky merger. This article discusses the Commerce Commission’s decision to decline the merger and

how it is in line with current thinking on vertical mergers.

Keywords

vertical merger, Commerce Act 1986, clearances, authorizations, substantial lessening of competition,

in doubt, merger guidelines, counterfactual analysis

Professor Ahdar’s elegant and magisterial text on the evolution of New Zealand’s competition law

1

shows one of the great attractions of the subject in that it is never static. Views of various practices

change over time, whether this be vertical restraints or refusals to supply or predatory pricing. New

Zealand cases involving such areas have led to academic disagreements. Professor Ahdar and I have

engaged in such controversies. Our opposing views on the Fisher & Paykel Ltd. v. Commerce Com-

mission

2

exclusive dealing case

3

and the Carter Holt Harvey Building Products Group Ltd. v. Com-

merce Commission

4

predatory pricing case evidence that.

5

* Faculty of Law, Victoria University of Wellington, Wellington, New Zealand

Corresponding Author:

Paul Scott, Faculty of Law, Victoria University of Wellington, Wellington 6140, New Zealand.

Email: paul.cp1@gmail.com

1. REX AHDAR, THE EVOLUTION OF COMPETITION LAW IN NEW ZEALAND (2020).

2. [1990] 2 NZLR 731.

3. Rex Ahdar, Exclusive Dealing and the Fisher & Paykel Saga, 15 NEW ZEALAND UNIVERSITIES L. REV. 1 (1992); Paul

G. Scott, Raising Rivals Costs and Exclusive Dealing, 6C

ANTERBURY L. REV. 291 (1996).

4. [2006] 1 NZLR 145.

5. Paul G. Scott, Is a Dominant Firm’s Below Cost Pricing Always a Breach of Section 36 of the Commerce Act, 21 NEW

ZEALAND UNIVERSITIES L. REV. 106 (2004); Rex Ahdar, Continuing Uncertainties Surrounding Predatory Pricing:

Some New Zealand Reflections, 23 ECLR (2002).

The Antitrust Bulletin

2021, Vol. 66(4) 470–480

ªThe Author(s) 2021

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DOI: 10.1177/0003603X211044907

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