Edited by John Duns, Arlen Duke and Brendan Sweeney
Chapter 5: Anti-competitive agreements: The range of conduct caught
The previous chapter dealt with the concept of agreement, with its attendant uncertainties. The current chapter assumes that the requirement of agreement has been met and turns attention to the content of the agreement. What are the key issues confronting competition law and policy when faced with the terms of an agreement and how do jurisdictions seek to resolve these issues? The first difficulty arises from the sheer variety of agreements to be assessed. Probably more than any other area of competition law, the range of conduct calling for analysis in the area of anti-competitive agreements is itself so varied that this creates its own difficulties. Agreements may be entered into in order to conduct business transactions, to avoid competition, to share information, to promote standards, to generate efficiencies and so on. They may range from a hard-core cartel through to a joint venture to engage in research and development (R & D). It follows that agreements may be entered into for anti-competitive, pro-competitive or competitively neutral reasons. Indeed, the one agreement may well contain both pro-competitive and anticompetitive (and neutral) provisions. All this might suggest that, as a matter of competition policy, the only way to assess agreements would be to subject them to some sort of lessening-of-competition/rule-of-reason test.
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