Notes (2) - International Comparative Analysis of Private Rights of Access

Notes (cont'd)

⁶³ Guideline on administrative resolution TPC Canberra 1993.

⁶⁴ ALRC Report No. 68, supra, n. 34, at para. 11.5. More current information from the ACCC indicates that this number is now considerably higher. In recent years, the ACCC has tended to increase considerably its reliance upon obtaining § 87B undertakings.

⁶⁵ Id., at para. 11.9.

⁶⁶ Id., at para. 11.12.

⁶⁷ Id., at paras. 11.14 & 11.15.

⁶⁸ See text accompanying nn. 28-30, supra.

⁶⁹See Internet at http://law.agps.gov.au/.

⁷⁰ See text accompanying nn. 53-54, supra.

⁷¹ See text accompanying nn. 24- 25, supra.

⁷² ALRC Report No. 75, Costs Shifting - Who Pays for Litigation? (1995), at paras. 4.3-4.5.

⁷³ See, however, ALRC Report No. 75, supra, n. 72, where the ALRC states that "(t)he risk of an adverse costs order seems to the Commission to be an inefficient mechanism for filtering frivolous, vexatious or unmeritorious claims and defences. Deterring ...(these) is more appropriately addressed by case management and other procedural controls designed to identify and deal with such claims and defences at an early stage of proceedings." Id., at para. 4.13.

⁷⁴ ALRC Inquiry Publication No. 20, The Cost of Federal Civil Litigation (1997), at para. 12.35.

⁷⁵ See Federal Court Order 62, Rule 19.

⁷⁶Schedule 2, implemented through Order 62, Rule 12 of the Federal Court Rules.

⁷⁷ Id., Items 35 & 36.

⁷⁸ Id., Item 44.

⁷⁹ Order 62, Rule 12(1).

⁸⁰ Id., Rule 22.

⁸¹ Id., Rule 36(1).

⁸² Id., Rule 36(2).

⁸³ Id., Rule 36A.

⁸⁴Order 62A, Rule 1. Under Rule 2 of this Order, however, awards of costs due to delay or misconduct by the party that is ordered to pay are recoverable in addition to the capped costs ordered by the court.

⁸⁵ALRC Report No. 75, supra, n. 72, at n. 5 of Report.

⁸⁶ See text accompanying nn. 91-92, infra. The ALRC has, however, recommended that the ACCC be able to recover its costs of investigation. See ALRC Report No 68, supra, n. 34. To date, this recommendation has not been implemented.

⁸⁷ See text accompanying nn. 49- 50, supra.

⁸⁸ See Id.

⁸⁹ ALRC Report No. 68, supra, n. 34, at para. 11.26. (Emphasis supplied.) The ALRC went on to recommend that the ACCC be entitled to apply for declarations in its own right. Id., at para. 11.27.

⁹⁰Interview with Commissioner Bhojani, January 21, 1999.

⁹¹ Supra, n.7.

⁹² Id., at 590. (Emphasis supplied.)

⁹³ See § 101A of the Act.

⁹⁴ S. Bhojani, Exemptions, Notifications and Authorisations (1996), at Internet Site www.accc. gov.au/docs/speeches/sp3of96.html.

⁹⁵ Id.

⁹⁶ See § 165 of the Act and Regulation No. 28.

⁹⁷ (1987) ATPR 40-774 (Trade Practices Tribunal).

⁹⁸) Id., at 48,418 - 419.

⁹⁹ Interview with Commissioner Bhojani, January 21, 1999.

¹⁰⁰ ACCC Annual Report, 1997-98, at 9. It was indicated in the January 21, 1999, interview with Commissioner Bhojani that in restrictive trade practices cases under Part IV of the Act, the ACCC generally takes into account the following factors:

---

(1) The market shares of the parties;

(2) The significance of the conduct in question; and,

(3) How well resourced the potential litigants are.

¹⁰¹ ACCC, A Guide to Unconscionable Conduct in Business Transactions (1998), at Internet Site http://www.accc.gov.au/.

¹⁰² See also, ACCC, Small Business Report: Small Business Amendments to the TPA (1998), Internet Site http://www.accc.gov.au/, where the ACCC said:

The Commission's latest Annual Report says that it will continue to select its consumer protection priorities by having regard to key issues in its operating environment and whether or not the conduct:

• is multi-state, national or international;
• involves significant consumer detriment;
• warrants Commission involvement for a worthwhile educative or deterrent effect;
• causes detriment to small business and/or the competitive process;
• involves an opportunity to test the law in appropriate circumstance.

These priorities fairly closely track the criteria of "significance" set forth in the text, above.

¹⁰³ ALRC Report No. 68, supra, n. 34, at para. 11.17.

¹⁰⁴ Id., at para. 11.22.

¹⁰⁵ Id.

¹⁰⁶ Id., at para. 11.23.

¹⁰⁷ Id.

¹⁰⁸The only assistance given to private litigants under the Act is found in § 83, which essentially provides that in a follow-on action for damages or a declaration, a prior finding of fact by a court in an action against the same person in which the person was found to have contravened, inter alia, a provision of Part IV of the Act "is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the Court from which the finding appears." Id.

¹⁰⁹ ALRC Background Paper 3, Judicial and Case Management (1996), at 11-13.

¹¹⁰ Id., at 15.

¹¹¹ In light of the lengthy and hard-fought nature of restrictive trade practices cases, however, this expectation would appear to overly optimistic. See text accompanying nn. 124-25, infra.

¹¹² ALRC Background Paper 3, supra, n.109, at 14. Early Neutral Evaluation (ENE) involves an early evaluation of the chances of success should the matter proceed to trial. The evaluation is performed by a neutral with legal expertise in the subject matter of the dispute.

¹¹³ Order 35, Rule 10(3).

¹¹⁴ Id., Rule 10(2).

¹¹⁵ The ALRC defines "vexatious" and "frivolous" as follows:

---

Proceedings will be vexatious if the are

• instituted with the intention of annoying or embarrassing the other party
• brought for collateral purposes, and not for the purposes of having the court adjudicate on the issues to which they give rise
• irrespective of the motive of the litigant, so obviously untenable or manifestly groundless as to be utterly hopeless.

The meaning of 'frivolous' is less clear. It is often used as an adjunct to 'vexatious'. When it has been considered the courts have interpreted it as describing cases that are obviously unsustainable or so obviously untenable that they cannot possibly succeed. The courts have been very cautious in regard to exercising their power to stay or dismiss vexatious or frivolous proceedings. ... ALRC Report No 75, Cost Shifting - Who Pays for Litigation (1995), at para. 11.25.

¹¹⁶ See text accompanying n. 109, supra.

¹¹⁷ It is not believed that liberalized rules regarding standing to sue open the floodgates to futile or vexatious litigation. The ALRC said:

---

Most responses to DP (Discussion Paper) 61 agreed with the Commission's conclusion in ALRC 27 that reforms to standing will not open the door to futile or vexatious litigation. The courts have a number of mechanisms for controlling such litigation including the power to deal with vexatious or frivolous claims and litigants, to strike out matters for showing no cause of action or for being an abuse of process, to require a plaintiff to provide security for costs and to require a lawyer to pay any costs incurred by the parties as a result of the lawyer's delay or misconduct. In some cases a court may find that a claim is not justiciable. ... ALRC Report No. 78, Beyond the Door-Keeper Standing to Sue for Public Remedies, at para. 4.43.

¹¹⁸ ALRC Report No. 75, supra, n. 115, at para. 11.11.

¹¹⁹ See ALRC Background Paper 3, supra, n. 109, at 37 - 38.

¹²⁰ D. Ipp, Reforms to the Adversarial Process in Civil Litigation - Part II (1995), 69 Australian Law Journal 790, at 797.

¹²¹ ALRC Background Paper 3, supra, n. 109, at 37.

¹²² Id.

¹²³Discussion Paper 62 is available on the Commission?s homepage http://www.alrc.gov.au

¹²⁴Letter from Dr. Cronin dated 8 October, 1999.

¹²⁵ Report to the ALRC, Federal Civil Litigation Working Group (December 23, 1996).

¹²⁶ Supra, n. 7, at 582-83.

¹²⁷ (1992) ATPR 41-162.

¹²⁸ (1992) ATPR 41-165.

¹²⁹ (1996) ATPR 41-521.

¹³⁰ Commerce Act 1986, N.Z. Stat. 5. The Act replaced the Commerce Act 1975, which was modeled on the old U.K. Restrictive Trade Practices Act. It is administered by the Commerce Commission, which also administers the Fair Trading Act. The latter deals with misleading advertising, product safety standards, etc.

¹³¹ See Rex J. Ahdar, Antitrust Policy in New Zealand: The Beginning of a New Era (1992), 9 Int. Tax & Bus. Lawyer 329, at 335.

¹³² 1983 N.Z.T.S. No. 1.

¹³³ Adhar, supra, n. 131, at 336.

¹³⁴ Commerce Amendment Act, 1990, N.Z. Stat. 84.

¹³⁵ ISBN No. 0-478-00043-X.

¹³⁶ The papers all commenced with the title, "Review of the Penalties, Remedies and Court Processes Under the Commerce Act, 1986." The papers were then subtitled as follows: Paper 1: Overview; Paper 2: Reforming Penalties and Offences; Paper 3: Reforming Remedies; Paper 4: Improving Court Processes; Paper 5: Increasing Detection. They were released to the public in 1999 under the Official Information Act.

¹³⁷ CAB (98) M 48/15, and telephone interview with Mr. Geoff. Connor, Competition & Enterprise Branch, Ministry of Commerce.

¹³⁸Discussion document, supra, n. 135, at 1, para. 1.1.

¹³⁹ A per se offence is one which is prohibited without requiring proof of its actual or likely effect upon competition.

¹⁴⁰ In the current statutory review, Cabinet agreed that "section 30 of the Commerce Act be widened beyond price fixing (which includes bid rigging) to include other hard core cartel activities (i.e. output limitation agreements, and market allocation agreements)." Cabinet Document CAB (98) M 48/15, at 2, para. e. See also, Commerce Act Amendment Bill, § 3.

¹⁴¹See Ahdar, supra, n. 131, at 336.

¹⁴² See §§ 81 & 82 of the Act.

¹⁴³See Act, § 84A, and Commerce Amendment Act, 1990, § 31.

¹⁴⁴ See Act, § 84.

¹⁴⁵ Supra, n. 135.

¹⁴⁶ Id., at 42, and Appendix 4, at 57. In several cases, allegations of abuse of dominance in contravention of § 36 were joined with allegations of anti-competitive arrangements or agreements in contravention of § 27 of the Act.

¹⁴⁷ See, e.g., Bond & Bond, Ltd. v. Fisher & Paykel, Ltd., (1986) 6 N.Z.A.R. 278 (exclusive dealing); McDonald Motors v. Christchurch International Airport (1991) 4T.C.L.R. 407 (exclusive dealing); Union Shipping New Zealand Ltd. v. Port Nelson Ltd. (1990), 3 N.Z.B.L.C .101, 618 (tying arrangement); and, Stevedoring Services (Nelson) v. Port Nelson, (1992) N.Z.A.R. 5 (tying arrangements and refusal of access to facilities).

¹⁴⁸ See, e.g.,; Chatham Islands Fishermen's Co-op v. Chatham Islands Packaging Co., (1988) 2 T.C.L.R. 605; Apple Fields, Ltd. v. New Zealand Apple and Pear Marketing Board, (1991) 1 N.Z.L.R. 257; Clear Communications v. Telecom Corp. (1991), Unreported CP 590/901; Clear Communications v. Telecom Corp. (1992), 4 T.C.L.R. 639; Clear Communications v. Telecom Corp. (1993), 4 N.Z.B.L.C. 103, 340 (C.A.); and, Stevedoring Services (Nelson) v. Port Nelson, supra, n.8.

¹⁴⁹ See New Zealand Magic Millions, Ltd. v. Wrightson Bloodstock, Ltd., (1990) 1 N.Z.L.R. 731; and, Tru Tone, Ltd. v. Festival Records Retail Mktg., Ltd., (1988) 2 N.Z.L.R. 352.

¹⁵⁰ See Direct Holdings v. Feltex (1986), 2 T.C.L.R. 61.

¹⁵¹ See the chapter on Australia, at 4-5.

¹⁵² Supra, n. 135.

¹⁵³ Id., at 17, n. 43.

¹⁵⁴ Ahdar, supra, n. 131, at 335.

¹⁵⁵ Id., at 331-34.

¹⁵⁶ But see, § 89(2) of the Act, which provides that in any action on a contract or covenant in which a contravention is found, which includes an action for injunctive relief, the court may, on its own initiative, vary or cancel the contract or covenant, and require a party to the contract or covenant to make restitution or pay compensation to another party.

¹⁵⁷ See also, § 89(1) of the Act, which empowers the court to order, inter alia, the payment of damages in an action for an injunction. Before making such an order, however, the court must find "that a person who is a party to the proceedings has suffered, or is likely to suffer loss or damage by conduct ... in contravention of any of the provisions of Part II of this Act."

¹⁵⁸ See Union Shipping New Zealand Ltd. v. Port Nelson Ltd., supra, n. 147; and, Clear v. Telecom (1992), supra, n. 148.

¹⁵⁹ See discussion document, supra, n. 135, at 24.

¹⁶⁰ Supra, n. 135.

¹⁶¹ (1975) A.C. 396, at 405-06.

¹⁶² Discussion document, supra, n. 135, at 30.

¹⁶³ Id., at 43-44.

¹⁶⁴ Id., at 40.

¹⁶⁵ See also, id., at 43 - 44.

¹⁶⁶ Id., at 41.

¹⁶⁷ Paper 3: Reforming Remedies, supra, n. 136, at 5, paras. 28-29.

¹⁶⁸ Id., at 5, para. 31.

¹⁶⁹ Cabinet document CAB (98) M 48/15, at 3, para. 3e, and § 10 of the Commerce Act Amendment Bill.

¹⁷⁰ Paper 4: Improving Court Processes, supra, n. 136, at 1.

¹⁷¹ For more on cease and desist orders, see section 3(b)(2) of this chapter, infra.

¹⁷² Discussion document, supra, n. 135, at 45.

¹⁷³ Id.

¹⁷⁴ Id., at 46.

¹⁷⁵ See the discussion document, supra, n. 135, at 34, § 4.3.2.

¹⁷⁶ Id.

¹⁷⁷ Id., § 4.1.

¹⁷⁸ Note, however, that the committee agreed with the discussion document that deterrence should be the primary goal of the enforcement regime of the Act. The committee said:

---

Having deterrence as the prime objective of the regime is the key in achieving an effective enforcement regime. In the area of competition sanctions do not need to protect society from continued violations to the extent required for violent crime. Also, Commerce Act offenders are not generally in need of rehabilitation. Rather the need is for the Act's sanctions to punish today's offender with sufficient severity to discourage others from committing similar acts in the future. .... Paper

---

1, supra, n. 136, at 5, para. 24.

¹⁷⁹ Paper 3, supra, n. 136, at para. 21

¹⁸⁰ Cabinet document CAB (98) M 48/15, at 3, para. 3c, and § 9 of the Commerce Act Amendment Bill.

¹⁸¹ Discussion document, supra, n. 135, at 32, n. 96, and at 50.

¹⁸² Supra, n. 147.

¹⁸³ Supra, n. 148. The decision of the Court of Appeal was later reversed by the Privy Council.

¹⁸⁴ Discussion document, supra, n. 135, at 41, para. 5.3.

¹⁸⁵ (CL 5/94, Auckland, 3 February 1997) at 197.

¹⁸⁶ Discussion document, supra, n. 135, at 42, para. 5.3.

¹⁸⁷ Paper 4, supra, n. 136, at 5, paras. 27-28.

¹⁸⁸ Id., at 4, para. 23.

¹⁸⁹ Id., at 5-6, paras. 28 & 32.

¹⁹⁰ Id., para. 29.

¹⁹¹ Id., para. 31.

¹⁹² Id., para. 33.

¹⁹³ Cabinet document CAB (98) M 48/15, at 3, paras. 4b-f.

¹⁹⁴ Paper 4, supra, n. 136, para. 31.

¹⁹⁵ Id., at 3, para. 15. Cease and desist orders would not be available in merger cases.

¹⁹⁶ Id., para. 18.

¹⁹⁷ Id., para. 17. This vision was essentially reproduced in §§ 5A & 10A of the Supplementary Order Paper filed on July 29, 1999. There were, however, some additional features. Section 5A empowered the Commission to require positive action in a cease and desist order if satisfied that "restraining ...the conduct will not restore competition, or the potential for competition." It also provided for the imposition of pecuniary penalties for contraventions of cease and desist orders.

¹⁹⁸ Id., at 4, para. 23.

¹⁹⁹ Id., para. 21.

²⁰⁰ Id.

²⁰¹ Id., at 4-5, para 24.

²⁰² Id., at 5, para. 26.

²⁰³ See n. 194 and accompanying text, supra, as well as the Supplementary Order Paper, July 29, 1999.

²⁰⁴ Commerce Act, § 75. The Cabinet Economic Committee considered and rejected the criminalization of contraventions of the Act. Paper 2, Reforming Penalties and Offences, supra, n. 136, at 6-7, paras. 26-32.

²⁰⁵ Commerce Act, §§ 80(1)(f) & 83(1)(f).

²⁰⁶ Paper 2, supra, n. 136, at 1, para. 4.

²⁰⁷) Most of the pecuniary penalties imposed since 1990 were presented to the court as agreed penalties. They were negotiated between the Commission and the defendants. The discussion document said that this might have contributed to a conservative approach toward the subject of penalties because the Commission generally requested penalties at the lower end of the scale to encourage avoiding the full cost and time delays of a contested trial. Discussion document, supra, n. 135, at 22.

²⁰⁸ Paper 2, supra, n. 136, at 2, para. 6.

²⁰⁹ Cabinet document CAB (98) M 48/15, at 2, para. 2c.

²¹⁰ Paper 2, supra, n. 136, at 4., para. 16.

²¹¹ Id., at 7, para. 37.

²¹² Id., at 10.

²¹³ Cabinet document CAB (98) M 48/15, at 3, paras. 2i & j, and Commerce Act Amendment Bill, §§ 6 & 7.

²¹⁴ Id., at 3, para. k.

²¹⁵ Paper 2, supra, n. 136, at 8, para. 42.

²¹⁶ Id.

²¹⁷ Id.

²¹⁸ Id., at 10.

²¹⁹ See Part V and § 61(6) of the Act.

²²⁰ See § 66 of the Act.

²²¹ See § 69A of the Act.

²²² Paper 4, supra, n. 136, at 5, para. 25.

²²³ Paper 5: Increasing Detection, supra, n. 136, at 3, paras. 15-16.

²²⁴ Cabinet document CAB (98) M 48/15, at 4, para. 5g.

²²⁵ Discussion document, supra, n. 135, at 51.

²²⁶ Id.

²²⁷ Paper 4, supra, n. 136, at 3, para. 12.

²²⁸ Written response to research assistant from the Commerce Commission, November, 1998.

²²⁹ Unreported, CP 849/90, February 5, 1993.

²³⁰ (1995), 5 N.Z.B.L.C. 103,668.

²³¹ See discussion document, supra, n. 135, at 22.

²³² Paper 1, supra, n. 136, at 12.

²³³ Id. The Commission, however, has taken informal steps to recover costs beyond those formally granted by a court. In 1997, the Commission noted that in its case against Port Nelson Ltd. (PNL), infra, n. 239, "(i)n addition to the $500,000 penalty imposed by the court, PNL agreed to pay $325,000 as a contribution to the Commission's costs for taking the action. This was in addition to the $25,000 costs ordered by the Court of Appeal." 44 Commerce Commission Newsletter, Fair's Fair , at 2 (Feb./March, 1997).

²³⁴ Id.

²³⁵ Written response from the Commerce Commission, supra, n. 229.

²³⁶ Id.

²³⁷ Paper 1, supra, n. 136, at 12.

²³⁸ (1995), 2 N.Z.B.L.C. 103,480.

²³⁹ (1992) N.Z.A.R. 5. After completion of the Commerce Commission's action, the private plaintiffs followed-on with an action for damages. The action was settled on undisclosed terms.

²⁴⁰ The power to authorize resale price maintenance was added in the 1990 amendments.

²⁴¹ See §§ 58 & 61(6)(d) of the Act. Under § 3A of the Act, which was inserted into the statute in the 1990 amendments, the Commission is required to have regard to any efficiencies that likely would result when evaluating public benefit.

²⁴² Nevertheless, it appears that price fixing agreements may be authorized under the more general provisions of §§ 27 and 28 of the Act. See R. J. Adhar, Antitrust Policy in New Zealand, supra, n. 131, at 371, where the author states, "Most anti-competitive conduct can be authorized, including horizontal price fixing, group boycotts, and, after 1990, resale price maintenance. A notable exception, however, is misuse of dominant position."

²⁴³ See § 67 of the Act.

²⁴⁴ Id., §§ 67(1)(b).

²⁴⁵ Id., §§ 67(1)(a).

²⁴⁶ Cabinet document CAB (98) M 48-15, at 4, para. 5h.

²⁴⁷ (1986) 6 N.Z.A.R. 278 (High Ct.).

²⁴⁸ (1989) 2 N.Z.B.L.C. 104,393.

²⁴⁹ (1990) 2 N.Z.L.R. 731 (High Ct.). This decision by the High Court also decided a private action by Fisher & Paykel's competitors in which they sought a declaration that the latter's practice of exclusive dealing contravened the Act.

²⁵⁰ See § 75 of the Act.

²⁵¹ Id., § 77.

²⁵² Id., §§ 77(9)-(11).

²⁵³ Id, § 97.

²⁵⁴ Written response from the Commerce Commission, supra, n. 229.

²⁵⁵ Discussion document, supra, n. 135, at 1, para. 1.1.

²⁵⁶ See Section 3(b)(2) of this chapter, supra.

²⁵⁷ On this point, the Cabinet Economic Committee said, "empowering the Commission to issue cease and desist orders will create a greater degree of transparency in the processes and procedures of the Commission. This increased transparency will enhance the perception of the Commission among the business community and is likely to improve compliance as a result." Paper 4, supra, n. 136, at 5, para. 25.

²⁵⁸ The Committee said:

Many cases are characterised by a significant number of interlocutory proceedings, drawn out substantive hearings and one or two appeals. This is particularly the case for actions taken by participants in network industry markets. The high probability that any significant case will be drawn out, implies a low probability that cases will be commenced. .... Paper 4, supra, n. 136, at 1.

²⁵⁹ Id., at 3, paras. 11-12.

²⁶⁰ This estimate was based upon a review of all historical cases, most of which would have been private actions. Paper 4, supra, n. 136, at 1.

²⁶¹ Id.

²⁶² Id., at 2.

²⁶³ (CL 5/94, Auckland, February 3, 1997) at 197.

²⁶⁴ Id. See also, discussion document, supra, n. 135, at 48, para. 6.2.1.

²⁶⁵ Discussion document, supra, n. 135, at 42, para. 5.4.

²⁶⁶ (1993) 4 N.Z.B.L.C. 103,340 (C.A.) The decision, however, was subsequently overturned by the Privy Council. See discussion document, supra, n. 135, at 44, para. 5.4.1.

²⁶⁷ Paper 5, supra, n. 136, at 2, para. 6.

²⁶⁸ Paper 3, supra, n. 136, at 1.

²⁶⁹) Id.

²⁷⁰ Discussion document, supra, n. 135, at 3, para. 1.3. The document states, "In order to achieve deterrence, the costs to firms of contravening a competition law must be at least 100% of the illegal gain and much greater in relation to some offences such as price fixing."Id.

²⁷¹ 1998 Chapter 41.

²⁷² Section 1 of the Act states that it replaces the Restrictive Practices Court Act 1976 (c. 33); Restrictive Trade Practices Act 1976 (c. 34); Resale Prices Act 1976 (c. 53); and, Restrictive Trade Practices Act 1977 (c. 19). Generally, mergers are excluded from the prohibitions of the Act. They remain subject to § 65 of the 1973 Act, as amended by Schedule I of the Competition Act. Mergers that are subject to EC controls are also excluded under Schedule I.

²⁷³ There was a private right of action under the former restrictive trade practices legislation but it did not result in any reported cases.

²⁷⁴ See § 60 of the Act, which provides that for purposes of interpretation and application of governing principles, questions arising under the Act should be "dealt with in a manner which is consistent with the treatment of corresponding questions arising in Community law in relation to competition within the Community."

²⁷⁵ The prohibitions of section 2 of the Act mirror those in article 85 of the Treaty. They prohibit, inter alia, agreements to fix prices; restrict production, technical development or investment; share markets or sources of supply; discriminate between traders; or tie together unconnected obligations. These are called Chapter I prohibitions.

The prohibitions of section 18 of the Act mirror those in article 86 of the Treaty. They prohibit abuse of dominant position by, inter alia, imposing unfair trading conditions; limiting production, markets or technical development; discriminating between traders; or tying together unconnected obligations. These are called Chapter II prohibitions.

²⁷⁶ See Christopher Blair, Research Paper 98/53 -- Competition Bill (H.L.) Bill 140 of 1997-98 (House of Commons - Business and Transport Section: London, April, 1998), at 41-2.

²⁷⁷ Restitution is a form of equitable relief designed to place the injured party in the same position it would have been in if, e.g., an illegal agreement had never taken place. It takes the injured party back to its original position. Damages are forward-looking. They seek to place the injured party in the same position it would have been in if the agreement in question was carried out in a lawful manner. Generally, restitution will only be granted where damages will not suffice to compensate for the injury.

²⁷⁸ Agreements that contravene the prohibitions of the Treaty are considered illegal and void. They are unenforceable by the courts. If one party to such an agreement seeks to enforce it against the other, the latter may seek a court order declaring that it is unenforceable due to its illegality. This would be akin to injunctive relief.

²⁷⁹ (1991) E.C.R. I-935.

²⁸⁰ Id., at I-982.

²⁸¹ Garden Cottages Foods Ltd. v. Milk Board, (1984) A.C. 130 (H. of L.).

²⁸² Gibbs Mew Plc v. Gemmell (Graham) (22/7/98), Case No. FC3 98/5827/1 et seq. (C.A.). (Retrieved from website www.smithbernal.com/casebase_search_frame.htm.) The court stated that English law does not allow a party to an illegal agreement to claim damages resulting from the agreement and, as a result, the sole remedy available to a party to the agreement would be a decree of unenforceability due to illegality. The court cited with approval two authorities from the European Community which stated that third party competitors were those who were intended to be protected by provisions like article 85 of the Treaty and it was they who could recover damages for losses suffered as a result of its infringement. See Italy v. EEC Council, (1966) E.C.R. 389, at 406; and, Opinion of Adv. Gen. Van Gervan in H.J. Banks & Co. Ltd v. British Coal Corp., (1994) E.C.R. I-1209, at I-1250, para 44.

²⁸³ See n. 282, supra.

²⁸⁴ See n. 283, supra.

²⁸⁵) See §§ 12 - 16 & 20 - 24 of the Act.

²⁸⁶ The Director cannot grant block exemptions on his or her own initiative. The Secretary of State has the authority to grant them upon recommendation from the Director.

²⁸⁷ See §§ 4 - 10 of the Act.

²⁸⁸ See § 35 of the Act.

²⁸⁹ See § 34 of the Act.

²⁹⁰ See § 36 of the Act.

²⁹¹ Id.

²⁹² Lord Woolf's Report is available at the following internet website: http://www.law.warwick.ac.uk/

²⁹³ Id., at Overview, para. 8.

²⁹⁴ Id., at paras. 9-10.

²⁹⁵ Forward to the new Civil Procedure Rules, Practice Directions and Forms, published at the following internet website: www.courtservice.gov.uk.

²⁹⁶ Mergers were excluded from the Act. They remained reviewable by the Minister for Enterprise, Trade and Employment under the Mergers and Take-over (Control) Acts, 1978 - 1996. In a 1996 amendment to the Act it became theoretically possible for the Competition Authority to review mergers; however, it has not done so. V. Power, Lessons from Recent Irish Merger Cases, at Internet Site http://www.clubi.ie/competition/compframesite/index.htm. On July 8, 1997, the Competition Authority called for changes to the Mergers Act to increase transparency and effectiveness while addressing competition concerns. New legislation is under consideration. In 1998, the Merger Review Group issued a draft report in the matter.

²⁹⁷ The anti-competitive conduct prohibited by § 4 of the Act includes price fixing; limitation of production, markets, technical development or investment; market division; price discrimination; and, tied selling.

²⁹⁸ Under the prohibition of § 5 of the Act, abuse of dominant position includes unfair pricing; limitation of production, markets or technical development to the prejudice of consumers; price discrimination; and, tied selling.

²⁹⁹ Like its counterparts in Australia, New Zealand and the UK, the Irish Competition Authority has the power to exempt anti-competitive agreements, etc., from the prohibitions of the Act. For more on this, see text accompanying nn. 311-12, infra.

³⁰⁰ Department of Justice, Equality and Law Reform, Irish Judicial System, at 12 (May, 1998).

³⁰¹ See id., at 10. The pecuniary limit for tort actions in the Circuit Court is L30,000.

³⁰² Interview with Mr. Patrick Massey, Director of Enforcement, Competition Authority, November 4, 1998.

³⁰³ Competition Authority Guide, Competition Law and Small Business (1997), at 3-4.

³⁰⁴ The Competition Authority was empowered to prosecute offences in summary proceedings, which limit potential fines to a maximum of L1,500 and imprisonment to a maximum of six months. When the Authority wishes to prosecute a more serious offence by way of indictment, the offence must be referred to the Director of Criminal Prosecutions.

³⁰⁵ See Competition Authority Guide, supra, n. 304, at 3, where the Competition Authority stated:

The Competition Acts operate alongside the EU competition rules. Articles 85 and 86 of the Treaty of Rome contain prohibitions on anti-competitive arrangements between firms and on abuse of dominant position similar to those contained in Sections 4 and 5 of the Competition Act, where such behaviour has an effect on inter-state trade. The EU Commission may impose fines of up to 10% of world-wide turnover for breaches of these rules.

³⁰⁶ Introductory note by the Editors of the Competition Journal to: Enforcement Guidelines & Criminal Prosecution for Anti-Competitive Offences (1998), Internet Site http://www.clubi.ie/competition/compframesite/Criminal.html, at 1.

³⁰⁷ As reported in 7 Competition, Section A: News & Comment, at A.1 (September, 1998).

³⁰⁸ See text accompanying n. 307, supra.

³⁰⁹ See text accompanying n. 303, supra.

³¹⁰ See §§ 4(2)&(3) of the Act. In determining whether to issue a license, the Authority must determine that the conduct "contributes to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit,"id., at § 4(2), and does not impose upon the parties any unnecessary restrictions while preserving competition in a substantial part of the market. As in Australia, Ireland did not grant the Competition Authority the power to grant licenses immunizing conduct contravening the § 5 prohibition against abuse of dominant position.

³¹¹ See §§ 4(4) and §§ 6(6) of the Act. See also, §§ 6(7) of the Act, which postpones the filing of private actions until the Authority has had an opportunity to rule on an application for a license or certificate and the completion of an appeal, if any, to the High Court. Subsection 6(7) also denies private plaintiffs relief for the period in which an application remains before the Authority and/or on appeal.

³¹² A copy of these guidelines may be found at the following Internet Site: http://www.clubi.ie/competition/compframesite/Criminal.html.

³¹³ Id., at 2 - 5.

³¹⁴ Professor Patrick McNutt, Some Reflections on Irish Competition Policy - (Signalling Games and Credible Threats), Paper delivered to a Competition Press Seminar in Dublin, Ireland, February 24, 1997, at 4-5, Internet Site http://www.irlgov.ie/compauth/reflect.htm.

³¹⁵ See Address by the Minister for Justice Mrs. Nora Owen, T.D. at the launch of the District Court Rules, 1997 in the Four Courts on 7 March, 1997. See also, Press Release, Publication of the Sixth Report of the Working Group on a Courts Commission, April 21, 1999.

³¹⁶ Address by the Minister for Justice, id., at 2.

³¹⁷The Clayton Act is codified as 15 U.S.C.A.§§ 12-27.

³¹⁸ Id., § 15

³¹⁹Individual states may also sue for treble damages under §4 of the Clayton Act, either in their own right or as parens patriae on behalf of their citizens. Local governments as well as federal and state-created bodies may do the same. The United States may only sue for single damages (§ 4A.) The same limitation is applied to actions under §4 by foreign governments (§ 4B).

³²⁰Federal Trade Commission Act 12 U.S.C.A. §§ 31-53

³²¹ Clayton Act, supra, n. 1, at § 12 (a)

³²² See: Steven C. Salop & Lawerence J. White, Treble Damages Reform: Implications of the Georgetown Project, 55 Antitrust Law Journal 73 (1986).

³²³ Id., at 74.

³²⁵ Note that the numbers in the table often add up to more than 100%. This results from counting more than once individual actions containing multiple allegations.

³²⁶ Salop & White, supra, n. 323, at 76.

³²⁷) Id., at 77.

³²⁸) Broad Definition: Includes as settlements the dismissal of cases by the courts.

³²⁹ Narrow Definition: Treats dismissals as judgments for defendants.

³³⁰ Salop & White, supra n. 323, at 77.

³³¹ Id.

³³² Broad Definition: Includes dismissals in settlements.

³³³ Narrow Definition: Includes dismissals in judgments for defendants.

³³⁴ Salop & White, supra n. 323, at 76-77.

³³⁵ Garry D. Watson, Civil Litigation, Cases and Materials, (Emond Montgomery: Toronto,

1991), at ll.

³³⁶ Source: NAFTA Working Group, Private Actions for Violations of Antitrust Laws, Appendix A.

³³⁷ 15 U.S.C.A., § 15.

³³⁸ See: Atlantic Richfield Co. v. USA Petroleum Co., 495U.S. 328, 334 (1990); Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 112-13 (1986); Associated General Contractors of California, Inc. v. California State Council of Carpenters (AGCC), 469 U.S. 519, 537 (1983); Blue Shield of Va. v. McCready, 457 U.S. 465, 477-78 (1982); Brunswick Corp v. Pueblo Bowl-O-Mat, Inc. 429 U. S. 477, 489 (1977)

³³⁹ Blue Shield of Va. v. McCready, U.S. 465, 477 (1982) (citing Illinois Brick Co. v. Illinois, 431 U.S. 720, 760 (1977) Brennan, J. dissenting)).

³⁴⁰ Id.

³⁴¹ C. Douglas Floyd, Antitrust Victims Without Antitrust Remedies: The Narrowing of Standing in Private Antitrust Actions, 82 Minn. Law Rev. 1 at 71.

³⁴² Supra, n. 338.

³⁴³ Floyd, supra, n. 341, at 8.

³⁴⁴ Id.

³⁴⁵ Id.

³⁴⁶ Id.

³⁴⁷ Id.

³⁴⁸ See n. 338, supra, and Hanover Shoe v. United Show Machinery, 392 U.S. 481.

³⁴⁹ Riss & Co. v. Association of American Railroad, 190 F. Supp. 10 (D.D.C. 1960).

³⁵⁰ See Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562 (1931).

³⁵¹ 15 U.S.C.A. §26.

³⁵² Id.

³⁵³ See, e.g., Revere Camera Co. v. Eastman Kodak Co., 81 F. Supp. 325, 331 (N.D Ill. 1948).

³⁵⁴ 7 F.R.Civ. P. 23.

³⁵⁵ Rule 23 (b) (1) (A).

³⁵⁶ Rule 23 (b) (1) (B).

³⁵⁷ Rule 23 (b) (2).

³⁵⁸ Rule 23 (b) (3).

³⁵⁹ Sherman Act, 15 U.S.C.A. § 1-7. Section 14 of the Clayton Act and Section 3 of the Robinson-Patman Act are also criminal provisions.

³⁶⁰ U.S.D.O.J., Antitrust Enforcement and the Consumer, Internet web site http://www.usdoj.gov/atr/public/div_stats/1638.htm, at § 2. See also, Sherman Act, §1.

³⁶¹ Sherman Act, § 5.

³⁶²Antitrust Enforcement, supra, n. 360, at § 2.

³⁶³ Id., at § 5.

³⁶⁴ Id.

³⁶⁵Id.

³⁶⁶ Joel I. Klein, The Importance of Antitrust Enforcement in the New Economy: Address to the New York State Bar Association, Antitrust Law Section (Jan. 29, 1998), at Internet web site http://www.usdaj.gov/atr/public/speeches/1338.htm.

³⁶⁷ Id., at 2.

³⁶⁸ See also, n. 320, supra.

³⁶⁹Hartford-Empire Co. v. United States, 323 U.S. 386, at 441-442 (1945). Note that under § 15, the court may make any temporary restraining order or prohibition as is deemed just. Section 15 does not require the United States to provide security or bond against damages for an improvidently granted order, as does § 16 of the Clayton Act, relating to private actions.

³⁷⁰For the significantly narrower scope of private actions for injunctions, see text accompanying n. 353, supra.

³⁷¹ Anne K. Bingaman, Change and Continuity in Antitrust Enforcement; Address to the Fordham Corporate Law Institute, Fordham Law School (October 21, 1993), at 4.

³⁷² Id.

³⁷³ Section 5(a) of the Clayton Act also provides that ?judgments or decrees entered into? in actions by the United States for its own actual damages may not be used as prima facie evidence in subsequent private actions. Note too that § 5(a) also provides for the issuance of consent decrees in criminal actions. These, however, may be used as prima facie evidence in subsequent proceedings.

³⁷⁴ See 18 U.S.C.A. §401.

³⁷⁵ The Antitrust Division checks compliance by issuing Civil Investigative Demands under the Antitrust Civil Process Act, 15 U.S.C.A. §§1311-14, 18 U.S.C.A. §1505. By means of these demands, the Division can compel a company to produce its books and records for inspection. More broadly, Civil Investigative Demands may be issued against any person, not a natural person, who is under investigation and reasonably believed to possess documents relevant to a civil or criminal investigation. See Id., §1312(a).

³⁷⁶ See FTC v. Cement Institute, 333 U.S. 683, 689-95 (1948). The FTC was established in 1914 at the same time as the Clayton Act was passed. See, Federal Trade Commission Act, 38 Stat. 717 (1914).

³⁷⁷The FTC has the responsibility to prevent unfair methods of competition that violate the Sherman Act, and the discrimination, tying, exclusive dealing, and merger provisions of the Clayton Act. Other matters falling under the jurisdiction of the FTC include false and deceptive advertising and unfair methods of competition in export trade. The FTC also has certain investigatory and information-gathering powers regarding economic and business conditions.

³⁷⁸II The Public Papers of Woodrow Wilson - - College and State 432 (auth?d ed. 1925).

³⁷⁹ See §5(b) of the FTC Act for the power of the FTC to issue cease and desist orders.

³⁸⁰ See 16 C.F.R. §§0.14; 2.1 & 2.2.

³⁸¹ In 1996, the Commission established an optional ?fast track? procedure for Commission adjudicatory proceedings challenging conduct that had already been preliminarily enjoined in Federal court. See text accompanying nn. 67 et seq., infra. In 1998, the Commission broadened the ?fast track? option to include matters in which significant discovery had already occurred in a federal court proceeding. See Federal Register: February 13, 1998 (Volume 63, Number 30), at Internet site http://www.ftc.gov/os/1998/02/textile.htm. The ?fast-track? option rules may be found at 16 C.F.R. §3.11A.

³⁸² See § 5(c) of the FTC Act.

³⁸³ Id., § 5(e).

³⁸⁴ Id., § 5(g).

³⁸⁵ Id., § 5(l).

³⁸⁶ Id.

³⁸⁷ Id. § 13(b).

³⁸⁸ Id.

³⁸⁹ Id. If the Commission succeeds at trial, a permanent injunction will ensue.

³⁹⁰ Anne K. Bingaman, supra, n. 371, at 9. Se also Gary R. Spatling, Making Companies an Offer The Shouldn?t Refuse: The Antitrust Division?s Corporate Leniency Policy - - An Update, Address to the District of Columbia Bar Association, Washington, D.C., February 16, 1999.

³⁹¹ Id., at 8-9.

³⁹² Id., at 2-3

³⁹³ See Internet site http://www.usdoj.gov/atr/public/guidelines/lenind.htm.

³⁹⁴ See 26 C.F.R § 50. 6.

³⁹⁵ Annual Report of the Federal Trade Commission for Fiscal Year Ended September 30, 1997, at Appendix.

³⁹⁶ See Judith A. Moreland, Attorney, Bureau of Competition FTC, Overview of the Advisory Opinion Process at the Federal Trade Commission, address to the National Health Care Lawyers Association, Washington, D.C., February 13, & 14,

³⁹⁷ Id.

³⁹⁸ See Moog Industries, Inc. v. FTC, 355 U.S. 411 (1958).

³⁹⁹ See Annual Report of the FTC, 1997, supra, n. 395, at Appendix.

⁴⁰⁰ Id.

⁴⁰¹ Antitrust Division Manual, Chapter VII, page 1, at Internet site http://www.usdoj.gov/atr/foia/divisionmanual/ch7.htm#f. The two agencies also share responsibility for administrating the Hart-Scott-Rodino Act, which initiated pre-merger notification in the United States. They have jointly issued Pre-Merger Notification Guidelines.

⁴⁰² Id., at 1-2.

⁴⁰³See William J. Baer, Director, Bureau of Competition, FTC, Report from the Bureau of Competition (1999), address to the American Bar association Antitrust Section, April 15, 1999; Annual Report of the FTC, 1997 supra, n. 395.

⁴⁰⁴ See Antitrust Enforcement and the Consumer, supra, n. 360, at s. 5; and Joel J. Klein, supra, n. 366 , at 2.

⁴⁰⁵ See Salop & White, supra, n. 323.

⁴⁰⁶ H. First, Antitrust Enforcement in Japan, 64 Antitrust L. J. 137, at 179-80 (1995).

⁴⁰⁷ Kronstein, Miller & Dommer, Major American Antitrust Laws, Ocean Publications, Inc., Dobbs Ferry (1965).

⁴⁰⁸ See A. Hirsch and D. Sheehey, Awarding Attorneys? Fees and Managing Fee Litigation, Federal Judicial Center (1994), at Internet site http://www.fjc.gov/.

⁴⁰⁹ Id., at 1.

⁴¹⁰ Id., at 2.

⁴¹¹ See Alyeska Pipeline Services Co. v. Wilderness Society, 421 U.S. 240 (1975).

⁴¹² See Hirsch and Sheehey, supra, n. 408, at 1-2.

⁴¹³ Id.

⁴¹⁴ See §§4A and 15 of the Clayton Act. § 4A authorizes an award of costs to the United States in its suits for single damages for injury to the property, etc., of the United States; however, costs are interpreted as applying only to statutory costs, such as filing fees, which are minimal in nature. They do not include attorney's fees.

⁴¹⁵ Advice from the Justice Department, Antitrust Division. Individual states have, however, brought parens patriae actions on behalf of their citizens. See n. 320, supra.

⁴¹⁶ See F.R.A.P. §§ 29(a).

⁴¹⁷ Advice from the Justice Department, Antitrust Division, Appellate Section.

⁴¹⁸) Id.

⁴¹⁹ Three statutes purport to grant limited immunity. The Webb Pomerene Act grants limited immunity for export activity. The Newspaper Preservation Act permits certain newspapers to pool their operations so long as they maintain separate editorial policies. The National Cooperative Research and Production Act purports to confer immunity from treble damage liability, but only if it has been determined that the cooperation does not constitute an antitrust violation.

⁴²⁰See text accompanying nn. 363-367, supra.

⁴²¹ See text accompanying nn. 371-372, supra.

⁴²² Advice from the Justice Department, Antitrust Division.

⁴²³ Id. See also, n. 375, supra.

⁴²⁴ Id.

⁴²⁵ Thomas Kauper and Edward Snyder, An Inquiry into the Efficiency of Private Anti-trust Enforcement: Follow-on and Independently Initiated Cases Compared, 74 Georgetown L.J. 1163 (1986).

⁴²⁶ 28 U.S.C.A. § 471 et seq.

⁴²⁷ Id.

⁴²⁸ For an excellent review of the efficiency of voluntary arbitration in the courts, see Federal Judicial Center, Voluntary Arbitration in Eight Federal District Courts: An Evaluation (1994). For a broader perspective on the principal ADR processes used in the federal courts, see D. Steinstra, ADR in the Federal Judicial Center, Internet site http://www.fjc.gov/.

⁴²⁹ The Civil Justice Reform Act of 1990, Final Report, at Internet site http://www.uscourts.gov.

⁴³⁰ Federal Judicial Center, Discovery and Disclosure Practice, Problems and Proposals for Change (1997) at Internet site http://www.fjc.gov/.

⁴³¹ Id., at 2.

⁴³² Id. The study added, ?Total cost is also associated with the size of the law firm, the type of case, and whether the case was complex or contentious.? Id.

⁴³³ See F.R. Civ. P., Rule 26(a)(1).

⁴³⁴ See John E. Shapard et al, Report of a Survey Concerning Rule 11, Federal Rules of Civil Procedure, Federal Judicial Center (1995).

⁴³⁵ See John e. Shapard, Likely Consequences of Amendments to Rule 68, Federal Rules of Civil Procedure, Federal Judicial Center (1995).

⁴³⁶ See text accompanying n. 336, supra.

⁴³⁷ See text accompanying nn. 328-329, supra.

⁴³⁸ See text accompanying nn. 323-335, supra.

⁴³⁹ See text accompanying n. 406, supra.

⁴⁴⁰) See, e.g., New Zealand, text accompanying nn. 188-189.

⁴⁴¹ For Australia, see text accompanying nn. 27-31, supra; for New Zealand, see text accompanying nn. 159-161.

⁴⁴² See New Zealand, text accompanying nn. 162-170, supra.

⁴⁴³ See Ireland, text accompanying nn. 303-307, supra.

⁴⁴⁴ See id., text accompanying nn. 298-300.

⁴⁴⁵ See United States, text accompanying n. 353, supra.

⁴⁴⁶ William J. Baer, Report from the Bureau of Competition (1999), Address to the American Bar Association, Antitrust Section, Washington, D.C., April 15, 1999.

⁴⁴⁷ See United Kingdom, text accompanying nn. 274 & 289-90, supra.

⁴⁴⁸) See, e.g., Australia, text accompanying n. 103, supra.

⁴⁴⁹ In the United States, it was found that discovery expenses generally represented 50% of litigation expenses. See text accompanying n. 431, supra.

⁴⁵⁰ See New Zealand, text accompanying n. 255, supra.

⁴⁵¹ See Australia, text accompanying nn. 103-108, supra.

⁴⁵² See Ireland, text accompanying n. 315, supra.

⁴⁵³ See United States, text accompanying n. 422, supra.

⁴⁵⁴ See Australia, n. 108, supra.

⁴⁵⁵ In some cases, the scope of the private right of action is narrower that of the public sector. For example, in Australia, a private party cannot sue for injunctive relief in merger cases.

⁴⁵⁶ See Australia, text accompanying n. 57, supra.

⁴⁵⁷ See United Kingdom, text accompanying nn. 291-292, supra.

⁴⁵⁸ See New Zealand, text accompanying nn. 205-211, supra.

⁴⁵⁹ It will be recalled that in New Zealand, the Cabinet Economic Committee chose the option of exemplary damages over treble damages due to concern about the potential windfall gain to private plaintiffs that might result from the latter.

⁴⁶⁰ See Australia, text accompanying n. 35, supra, et seq.

⁴⁶¹ See id, text accompanying n. 33; New Zealand, text accompanying nn. 185-186.

⁴⁶² See, e.g., New Zealand, text accompanying nn. 196-204, supra.

⁴⁶³ In Australia, injunction is by far the preferred remedy. See Australia, text accompanying n. 25, supra. In, New Zealand, injunctions are virtually the only remedies that have been granted in private actions. See text accompanying nn. 176-177.

⁴⁶⁴ New Zealand, Cabinet Economic Committee, Paper 5: Increasing Detection, supra, n. 136, at 2, para. 6. The potential for effective response by market participants to readily detectible conduct was regarded by the Cabinet Economic Committee as a necessary corollary to public enforcement. See New Zealand, text accompanying n. 269, supra.

⁴⁶⁵ See Australia, text accompanying nn. 17-18, supra. See also, text accompanying nn. 19-21, which indicates that price fixing and conspiracy remain a leading concern of the Australian Competition and Consumer Commission. The priorities which are observed in practice do not correspond with the Commission's stated priorities, which were said to be abuse of market power and resale price maintenance. See text accompanying n. 101, supra.

⁴⁶⁶ Until now, only price fixing and bid rigging were per se offences.

⁴⁶⁷ See New Zealand, text accompanying nn. 139 - 139, supra, and Cabinet Economic Committee, Paper 5, supra, n. 23.

⁴⁶⁸) See Australia, text accompanying nn. 100-102, supra; New Zealand, text following that accompanying n. 254, supra; Ireland, text accompanying nn. 313-314, supra.

⁴⁶⁹ See U. S. Department of Justice, Antitrust Enforcement and the Consumer, at Internet site http://www.usdoj.gov/atr/public/div_stats/1638.htm; Joel I. Klein, The Importance of Antitrust Enforcement in the New Economy, Address to the New York State Bar Association, Antitrust Law Section, January 29, 1998.

⁴⁷⁰ Anne K. Bingaman, Change and Continuity in Antitrust Enforcement, Address to the Fordham Corporate Law Institute, October 21, 1993.

⁴⁷¹ See Australia, text accompanying n. 125, supra; New Zealand, text accompanying nn. 262-265, supra; United States, text accompanying n. 9, supra.

⁴⁷² See Australia, text accompanying nn. 108-112, supra.

⁴⁷³ See New Zealand, text accompanying nn. 256-260, supra.

⁴⁷⁴ See United Kingdom, text accompanying nn. 293-296, supra.

⁴⁷⁵ See United States, text accompanying n. 426 et seq., supra.

⁴⁷⁶See Australia, text accompanying nn. 72-85, supra; New Zealand, text accompanying nn. 226-228, supra. In the United States, the treble damage provision of the antitrust laws constitutes a "fee-shifting" statute, which alters the traditional American rule that each party must bear its own costs. Under s. 4 of the Clayton Act, a successful treble damage plaintiff may recover "the cost of suit, including a reasonable attorney's fee." A successful defendant, however, cannot shift its costs to the treble damage plaintiff.

⁴⁷⁷ It seems noteworthy that in Australia, the costs indemnity rule is viewed as an inefficient mechanism for filtering out unmeritorious, vexatious or frivolous litigation. The Australian Law Reform Commission regards that task as better handled by case management and other procedural controls. Interestingly, in both Australia and New Zealand, the competition authorities are subject to the same costs indemnity rule as private parties. See Australia, n. 73 & text accompanying n. 86, supra; New Zealand, text accompanying nn. 229-233, supra.

⁴⁷⁸ Australia, text accompanying nn. 37-41; 87-88, supra.

⁴⁷⁹ See New Zealand, text between nn. 154-155, supra.

⁴⁸⁰) See id., text accompanying nn. 188-204, supra.

⁴⁸¹ See id., text accompanying nn. 177-181, supra.

⁴⁸² See id., text accompanying nn. 196-198, supra.

⁴⁸³ See id., text accompanying nn. 178-181, supra.

⁴⁸⁴ See id., text accompanying n. 201, supra. See also, United States, text accompanying nn. 376-389, supra.

⁴⁸⁵ See Australia, text accompanying nn. 89-93, supra; see also New Zealand, text accompanying nn. 236- 240, supra.

⁴⁸⁶ See United States, text accompanying nn. 416-418, supra.

⁴⁸⁷ See Australia, text accompanying n. 99, supra.

⁴⁸⁸ See New Zealand, text accompanying nn. 248-250, supra.

⁴⁸⁹ In New Zealand, the Cabinet Economic Committee observed, "In evaluating options to strengthen incentives (to private enforcement) it is critical to strike the right balance between the remedies being too weak to achieve effective deterrence on the one hand, and being too attractive or strong so that private enforcement is used strategically for anti-competitive purposes on the other." Paper 3, Reforming Remedies, at 1.

⁴⁹⁰ See Australia, n. 6, supra.

⁴⁹¹ Paper 3, Reforming Remedies, supra, n. 136, at 3, paras. 16-17.

⁴⁹² See United States, text accompanying nn. 338-347, supra.

⁴⁹³ See Australia, text accompanying nn. 109-116; United Kingdom, text accompanying nn. 293-295; United States, text accompanying nn. 434-435, supra.

⁴⁹⁴ See Australia, text accompanying nn. 117-118, supra; United Kingdom, text accompanying n. 296, supra; United States, text accompanying nn. 434-435 , supra.

⁴⁹⁵ See New Zealand, text accompanying n. 176, supra.

⁴⁹⁶ See Ireland, text accompanying nn. 303-307, supra.

⁴⁹⁷ See New Zealand, text accompanying n. 198, supra. It is interesting to note from Table 5, above, that every jurisdiction in the study either considered or adopted a cease and desist order power. See Australia, text accompanying nn.65-66, supra; Ireland, text accompanying n. 308, supra.

⁴⁹⁸ Pending the issuance of an order or an order becoming final, however, the Federal Trade Commission can obtain temporary restraining orders and interim injunctions enjoining the violation. See United States, text accompanying nn. 387-388, supra.

⁴⁹⁹ It will be recalled that for, inter alia, this reason, the Commerce Commission initially opposed being granted the power to issue cease and desist orders. See text accompanying nn.199-204, supra.

⁵⁰⁰ See Australia, text accompanying n. 25, supra; New Zealand, text accompanying n. 176, supra.

⁵⁰¹ See United States, text accompanying n. 406, supra.

⁵⁰² See Australia, text accompanying nn. 126-129, supra.

⁵⁰³ See New Zealand, text accompanying nn. 266-267.

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