The State of the Failing Company Defence in New Zealand

Abstract

This brief outline identifies the various issues which confront the failing company defence. This article will:(1) briefly outline the competition laws which apply to mergers in New Zealand;(2) examine the theoretical basis for the defence with particular reference to the New Zealand setting;(3) briefly review the North American approach to the failing company defence; and(4) critically review the response to the defence in New Zealand by both the judiciary and the enforcement agency namely the Commerce Commission. The discussion of New Zealand developments will also trace the closely-related Australian response to the defence.