Unilateral conduct

Unilateral conduct by non-dominant firms

Are there any rules applying to the unilateral conduct of non-dominant firms?

As section 46 focuses on the unilateral conduct of firms with a substantial degree of market power, it is a lesser threshold than dominance and, therefore, may apply to the conduct of a firm that would not be considered dominant. Section 47 (exclusive dealing), which prohibits a firm from imposing conditions on supply or acquisition of goods or services that have an anticompetitive purpose or effect, also applies to the conduct of non-dominant firms that are, or may be, unilateral in character. Further, Australia’s per se minimum resale price maintenance prohibition does not require proof of dominance, market power or the existence of a contract, arrangement or understanding.

The Australian Consumer Law, which is Schedule 2 to the CCA, also regulates the unilateral behaviour of all firms in relation to how they deal with ‘consumers’, which includes businesses. The ACL prohibits unconscionable conduct, misleading or deceptive conduct, false or misleading representations, and provides for unfair consumer contract terms in standard form consumer and small business contracts to be declared void and unenforceable.