Summary
Summary Antitrust
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Background to antitrust law and the relevant foundations.
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Simplicity of Antitrust Law Antitrust law focus on combating bullying + ganging up when this
conduct harms competition.
The aim of competition law is to try + prevent agreements or conduct
by companies with substantial market power which unreasonably
restricts the operation of competition.
A situation in a market in which sellers of a product or service
independently strive for the patronage of buyers in order to
achieve a particular business objective, for example, profts, sales
and/or market share. Competitive rivalry between frms may take place in
terms of price, quality, service or combinations of these and
other factors which customers may value. Fair and undistorted
competition is a cornerstone of a market economy…Glossary of terms
used in EU competition policy
Per Robert Bork, ‘The Antitrust Paradox’ (1993), puts forward the
idea that the only legitimate goal of anti-trust, in the US was
maximisation of consumer welfare.
Seminal case of Mitchel v Reynolds (1711):
o R was a baker + rented bakeshop to M for 5 years + gave M a bond
of £50 upon the condition the bond would be void if R refrained
from acting as a baker during this time.
o R resumed his trade as baker in another location + M sued
upon bond.
o Decision: A bond or promise to restrain oneself from trading in a
particular place, if made upon a reasonable consideration, is
good.
o Lord Smith LC on the matter of restraint of trade said: "it is the
privilege of a trader in a free country, in all matters not
contrary to law, to regulate his own mode of carrying it on
according to his own discretion and choice. If the law has regulated
or restrained his mode of doing this, the law must be obeyed. But
no power short of the general law ought to restrain his free
discretion."
o The court made a series of observations on restraints of trade:
1) Obtaining sole exercise of a trade in England is a
monopoly + against public policy.
2) When sole exercise is limited to specifc places and
people, it's not a monopoly.
3) Some restraints under #2 are by custom, and therefore not
presumptively unlawful.
4) A person may lawfully part with his trade for
consideration.
5) Breaching such an agreement to give up trade creates a
cause of action for the other party.
6) When the law allows a restraint of trade, it can be enforced
with a penalty.
7) One may not contract to not use his trade at all (as
opposed to in certain places & times).
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