Re-Examining New Zealand's Anti-Monopolisation Laws: The Counterfactual Test as a Symptom of Jurisprudential Uncertainty

Abstract

Ever since the Privy Council handed down its decision in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd [1995] 1 NZLR 385 (PC), the so-called “counterfactual test” has been the liability test for evaluating cases of alleged monopolisation in New Zealand. Over the years, the test has proven to be very controversial. Amongst its critics are some of New Zealand’s leading scholars on the subject of competition law and some of this country’s most high ranking judges. This essay critically evaluates the counterfactual test in terms of its fit within antitrust jurisprudence. The paper argues that the counterfactual test fits uneasily within any particular theory of antitrust law in part because it attempts to reconcile mutually exclusive conceptions of competition law and in part because the precise scope, purpose and appropriate structure of our antitrust laws have to this day remained fundamentally uncertain.