BTF1010 Study Guide - Final Guide: Tooth And Co., Arts Centre Melbourne, Exclusive Dealing
6 Jun 2018
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BUYERS EXCLUSIVE DEALING
• Customer restraints S47(4)(c) Competition and Consumer Act
• Territorial restraints S47(4)(d) Competition and Consumer Act
• Refusal to acquire S47(5) Competition and Consumer Act
SUBSTANTIALLY LESSENING OF COMPETITION
• Does the exclusive dealing apply to a significant number of buyers?
• Will it intimidate or coerce other buyers to comply
• How long does exclusive dealings last?
• What is the content of the exclusive dealing and what is its effect on price services
quality and products?
When looking at cases on substantially lessening of competition we need to look at barriers to
entry, market share, price competition, product development, promotion and marketing and
public benefit issues.
“WITH AND WITHOUT” TEST
To determine whether competition has been substantially lessened, the courts apply the “with
and without test”. Apply the following steps:
• Determine the market
• Work out the level of competition likely to be expected without the exclusive dealing
• Work out the level of competition likely to be expected with the exclusive dealing
THIRD LINE FORCING S47(6) and (7)
Occurs when the supplier offers to supply the buyer on condition that the buyer agrees to
acquire secondary products from a third party. To be third line forcing needs two products
and three parties. Third line forcing occurs where the supplier offers to supply a buyer – or
offers some form of incentive to the buyer – on condition that the buyer agrees to acquire
secondary products from another person.
Document Summary
Buyers exclusive dealing: customer restraints s47(4)(c) competition and consumer act, territorial restraints s47(4)(d) competition and consumer act, refusal to acquire s47(5) competition and consumer act. When looking at cases on substantially lessening of competition we need to look at barriers to entry, market share, price competition, product development, promotion and marketing and public benefit issues. To determine whether competition has been substantially lessened, the courts apply the with and without test . Apply the following steps: determine the market, work out the level of competition likely to be expected without the exclusive dealing, work out the level of competition likely to be expected with the exclusive dealing. Occurs when the supplier offers to supply the buyer on condition that the buyer agrees to acquire secondary products from a third party. To be third line forcing needs two products and three parties.
