Construing the Counterfactual

Kay Winkler

No 379901, Competition & Regulation Times from New Zealand Institute for the Study of Competition and Regulation

Abstract: Not quite three years ago, the New Zealand Supreme Court ruled that a firm can only be held to have taken advantage of its market power if a causal connection between the firms’ conduct and its market power can be established. The court’s decision, which relies on a counterfactual (‘but for’) test, has proved controversial. Critics claim that it is now easier in New Zealand than in other countries for dominant firms to abuse their market power. However, the counterfactual test may serve other purposes. Kay E Winkler puts the Court’s decision into perspective.

Date: 2013-06-01
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