Cento Veljanovski gave a paper entitled Metcash, Market Power and Counterfactuals” to a distinguished group of lawyers, regulators and judges at Chris Hodgekiss’ 20th annual Competition Law Conference in Sydney on 5th May 2012.  The session was chaired by Mr Justice Dobson of the New Zealand High Court, and the commentator was Grant Majoribanks of Freehills.  The paper examined the recent judicial confusion over the standard of proof required in merger cases in Australian and New Zealand competition laws following the controversial judgment at trial and by Buchanan J in the Full Federal Court in Metcash.  Veljanovski argues among other things that the “unbundling” of the merger counterfactual test into the choice of counterfactual and competition threshold each with a requisite standard of proof has led the judges into the realm of conditional probability and introduced unrecognised flaws in their reasoning.  A revised version of the merger section of the conference paper is to be published later in 2012 in the Australian Business Law Review.

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