Metcash and Mergers: The Implications of Metcash on Merger Analysis in New Zealand

Abstract

This paper explores the divergence in approaches that the Australian and New Zealand courts have taken when assessing whether a proposed merger would be likely to have an anti-competitive effect in a market. In particular, there is inconsistency as to the interpretation of the meaning of “likely” in the respective merger provisions. This paper looks at the key principles of statutory interpretation and the Australian and New Zealand case law on the meaning of “likely” (focusing on two recent cases on merger regulation in Australia and New Zealand) to clarify the approach that a New Zealand court should take. This paper proposes that a New Zealand court should take the view that “likely” means a “real chance” not “more probable than not” with respect to the counterfactual analysis used in s 47 of the Commerce Act 1986.