The extraterritorial application of New Zealand competition law

Abstract

More than sixty years have elapsed since the United States courts first held that the antitrust laws could apply to conduct that occurs wholly outside the United States where that conduct was meant to, and did in fact, produce some substantial effect in the United States. Although the extraterritorial application of the antitrust laws once generated enormous controversy, it is now generally accepted as inevitable, if not necessary. Many competition authorities are increasingly targeting international cartels. Successful enforcement actions are often followed by private actions for damages. One of the significant obstacles to suing international cartels in the New Zealand courts is the uncertain scope of application of the Commerce Act 1986 in international cases. A traditional territorial approach to the scope of application of the Commerce Act 1986 is not compelled by the statute and is increasingly at odds with international developments and the evolution of the common law. There is a vast literature of the extraterritorial application of United States and European Community competition law, and growing literature of the scope of the Australian Trade Practices Act 1974. However, little has been written about the subject in New Zealand. This article seeks to address this gap.