The Vodafone/Sky Decision and Vertical Mergers in New Zealand

Date01 December 2021
Published date01 December 2021
AuthorPaul Scott
Symposium: The Evolution of Competition Law and Policy in New Zealand
The Vodafone/Sky Decision
and Vertical Mergers
in New Zealand
Paul Scott*
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.
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
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-
exclusive dealing case
and the Carter Holt Harvey Building Products Group Ltd. v. Com-
merce Commission
predatory pricing case evidence that.
* 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.
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
Article reuse guidelines:
DOI: 10.1177/0003603X211044907

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