Causation in Misuse of Market Power Claims under the Competition and Consumer Act 2010 (Cth)

Katharine Kemp

Australian Business Law Review

Katharine Kemp, ‘Causation in Misuse of Market Power Claims under the Competition and Consumer Act 2010 (Cth)’ (2021) 49(4) Australian Business Law Review 208

Abstract

Following the amendment of s 46 of the Competition and Consumer Act 2010 (Cth) in 2017, a finding of misuse of market power no longer depends on proof of a causal link between a firm's substantial market power and the impugned conduct, but focuses on the causal link between the firm's conduct and the alleged actual or likely substantial lessening of competition. This article provides some foundations for addressing the challenge of analysing cause and effects under the amended s 46. It explains major theories of causation in philosophy and in law, and approaches to causation in unilateral conduct cases and guidelines in several jurisdictions. It proposes appropriate approaches to causation in some particularly challenging cases, namely those involving multiple causes; monopoly leveraging claims; and the special dynamics of multi-sided platforms.