Subjects 2009
ACLA Competition Law Master Class For In-House Counsel
Brief description
This seminar provides members of the Australian Corporate Lawyers Association with an understanding of the ‘essentials’ of competition law. It entails an overview of the relevant parts of the Trade Practices Act, covering the underlying economic policy and concepts, the substantive prohibitions on anti-competitive conduct and a range of enforcement and compliance issues.
The focus of the seminar is on key principles, conveyed through discussion of the statutory provisions, major cases and practical examples. It also includes an in-depth discussion of recent and proposed amendments in important substantive areas including cartels, misuse of market power and merger review, as well as in relation to the policies and investigatory powers of the Australian Competition and Consumer Commission.
The seminar is tailored to in-house lawyers, recognising that these practitioners are required to be familiar with a wide range of legal areas. It enables in-house lawyers to ‘spot’ competition law issues in transactions and dealings with competitors, customers and suppliers and, to the extent necessary, brief external lawyers in a timely fashion. It also canvasses approaches to compliance, with a view to ensuring such issues do not arise, and enforcement, should enforcement action be threatened or taken. In conjunction with Freehills, practical aspects of advising on competition law issues are canvassed from a practitioner perspective.
Participants are provided with a set of printed materials and a detailed slide presentation is made available at each session. The masterclass also provides an opportunity for questions and discussion.
The Master Class may be credited towards mandatory continuing legal education (MCLE) or continuing professional development (CPD) requirements
Feedback from Master Class participants
For the forty in-house counsel who took part, the ACLA Competition Law Master Class provided a great opportunity to examine the Trade Practices Act in detail, with a tailored focus on issues relevant to those working in-house.
Feedback collected after the Master Class stated that, of those who took part, 64 per cent rated the quality of the Master Class presentation as ‘Excellent’. One hundred per cent rated the class either four or five out of five, and everyone who took part said that they would recommend the Master Class to their colleagues.
Below are some comments from the ACLA Competition Law Master Class participants:
“Competition law is very relevant to my company’s business and we wanted to have a better understanding of it in-house, rather than having to revert to external counsel for minor questions. It was a fantastic course.”
“I wanted to update my knowledge of TPA law, gain a better understanding and consolidate my knowledge. The Master Class was great as it was not pitched ‘too low’. It was well constructed and thought provoking. The presenter had an excellent understanding of the law and ability to impart knowledge.”
“I enrolled in the Master Class to get an intensive and practical overview by a leader in the field. I received the benefits I was seeking and it left me considering further study in this area.”
“The presentation was excellent. Pitched to a good standard, not too much dumbing down despite the range of areas covered.”
Dates/format
- Friday 8 May, 8.30 - 12.30
- Wednesday 13 May, 8.30 - 12.30
Having two separate sessions with a week in between also gives attendees the opportunity to reflect on the material covered in the first session and raise questions about it in the next session. While not encouraged, it would be possible also for attendees to choose to attend only one of the sessions should they have particular areas of interest covered in one but not both of the sessions.
Venue
Freehills, Level 42, 101 Collins Street, Melbourne
Topics
Session 1: Friday 8 May 2009
- Australian competition law and policy - origins, influences and directions
- Historical development of competition law and policy in Australia
- Economic, political and social forces underpinning this area of law
- International influences, principally from the US and EC, but increasingly from Asia.
- Overview of the competition provisions and institutional framework of the Trade Practices Act 1974 (TPA)
- Types of business practices that may attract the TPA
- Agencies that administer the TPA
- Reach of the Act in terms of persons, entities and geographic areas.
- Key economic terms and concepts: competition, power and markets
- Role and meaning of markets under the TPA.
- Meaning of competition and its antithesis, market power, under the TPA
- Mergers and acquisitions
- Types of M&As covered by the TPA and the scope of the legal prohibition on M&As under the TPA
- Clearance of M&As by the ACCC and authorisation by the Australian Competition Tribunal – tests,
processes and information requirements.
- Misuse of market power
- Scope of the legal prohibition on misuse of market power by a single firm
- Tests to determine whether a firm has substantial power and has misused it
- Key principles from High Court cases and recent amendments (particularly in predatory pricing).
Session 2: Wednesday 13 May 2009
- Review and summary of key points covered in Session 1
- Cartels
- Types of conduct with competitors that are prohibited under the TPA
- Issues of evidence for proving collusion
- Different tests for illegality
- Exemptions and defences (e.g. for joint ventures)
- Major amendments to be introduced in 2009 criminalising serious cartel conduct
- Scope for immunity through notification (of collective bargaining only) and authorisation.
- Vertical relationships
- Types of conduct with suppliers and customers that are prohibited under the TPA (exclusive dealing and resale price maintenance)
- Different tests for illegality
- Developments in franchising
- Scope for immunity through notification and authorisation.
- Enforcement
- Structure, philosophy, priorities and decision-making processes of the ACCC
- Investigatory powers
- Immunity and cooperation (settlement) policies
- Penalties and remedies available through court proceedings
- Scope for private enforcement (damages claims).
- Compliance
- Design and administration of an effective corporate compliance program
- The relationship between a compliance program and a compliance culture
- Compliance programs in mitigation of penalty and the ACCC’s attitude to compliance.
Master Class Lead Instructor
The co-ordinator and primary teacher of the seminar is Associate Professor Caron Beaton-Wells, Director of Studies, Competition Law at the MLS. Dr Beaton-Wells directs and teaches in the undergraduate and graduate programs in competition law at the Law School, including the innovative graduate subject, Enforcing Competition Law. Dr Beaton-Wells has published in leading national and international journals, and is a regular speaker at major conferences in Australia and overseas and a commentator in the media on competition law issues.
She is the author of Proof of Antitrust Markets (Federation Press, 2003) and more recently, a series of articles and conference papers on cartel criminalisation. Dr Beaton-Wells is a member of the Trade Practices Committee of the Law Council of Australia and a founding member of the Academic Board of the Asian Competition Law & Economics Centre. She has been a member of the Bar since 1997 and was previously a solicitor at Mallesons Stephen Jaques.
Lawyers from Freehills play an active part in the seminars, including in discussion of a merger case-study and in a role play regarding a cartel immunity application.
Materials
Attendees at the seminar are provided with a folder of printed materials including extracts of key statutory provisions, cases, relevant articles and other materials. A list of recommended further reading and sources on each topic is also provided. Instruction is facilitated by the use of Powerpoint slides which are made available to attendees.
Registration fee
The registration fee for the seminar is $350 (inclusive of GST) per session (ie $700 in total). The printed materials are included in this fee.
