Melbourne Law School - Theses

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Type: Masters Research thesis × Start date: 2000 × End date: 2009 × Subject: 1974 ×

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    Time and the dimensions of substantiality: analysis of temporal market definition issues and the substantial lessening of competition standard
    Leuner, Tom ( 2007)
    There is a lack of guidance on the underlying requirements of the substantial lessening of competition legal standard. This paper seeks to develop the analytical basis for such guidance. It works from the premise that such guidance would lead to more consistent decision-making and provide a clear framework for many aspects of market definition and competition analysis. The timeframe for assessing substitution possibilities is one area that is particularly vague. It is argued that existing approaches to timeframes are flawed, as they fail to focus on the fundamental requirements of the substantial lessening of competition standard. The paper advocates a new approach derived from an analysis of the duration requirement of substantiality - the requirement that competition effects have a certain duration. The paper then analyses factors other than duration that may also affect the analysis of substantiality. It is argued that there are only three dimensions of substantiality in the substantial lessening of competition standard: duration, size of the effect and probability. Other possible dimensions, such as the size of the industry, appear to be irrelevant. Finally, the paper examines how the thresholds for the three dimensions interact and vary, arguing that there must be some capacity for trade-off between the thresholds.