What is wrong with mergers in the Federal Court

Ray Finkelstein

Competition and Consumer Law Journal

Ray Finkelstein, ‘What is wrong with mergers in the Federal Court’ (2020) 27 CCLJ 79

Abstract

The ACCC generally has been unsuccessful in court is establishing that a number of important mergers will breach s 50 of the Competition and Consumer Act 2010 (Cth). A likely factor explaining this is the approach of the Federal Court. This article explains why this is the case and concludes that the court has been led into error by failing to recognise that assessing the future with and without the merger is not a fact-finding exercise but rather a predictive one.