Tuesday, 18 April 2017

A quiet word in your ear...

First of all, a quiet word in the ear of parties appearing before the Commerce Commission.

Look at para 38 of the written reasons for the SkyTV/Vodafone decline. I've bolded the bit that's most important. The para reads
We collected and reviewed some useful evidence from which to construct the factual and counterfactual and our competition analysis. However, we also note that a number of parties provided some submissions on the merger that did not seem, to us, to accord entirely with statements made by the submitters elsewhere, including in internal records. We did not consider that all evidence of past or present conduct or events provided a reliable predictor of future likely impact.
This, folks, is somewhere in the general territory of a reproof, rebuke, and warning, and it's a good reminder (as I've advised before) not to take an opportunistic approach to competition or regulation proceedings. One of your biggest assets is your credibility, and your advisers'. While you will be tempted - of course you will - to run arguments that are inconsistent with what you've said somewhere else, to run with the incumbent hare and hunt with the new entrant hounds, don't do it.

And a quiet word in the Commission's ear, too.

At [15] the Commission says (I've italicised the bit I want to talk about)
We make a pragmatic and expert assessment of what is likely to occur in the future with and without the merger
which rang a bell, since something very like it appears in the Mergers and Acquisitions Guidelines, except that there (in para 2.35) it reads
We make a pragmatic and commercial assessment of what is likely to occur in the future with and without the merger
Perhaps this upgrade is a good 'deference' card to have in your hand in the appellate courts. But on the other hand you wouldn't want one of them saying something like, "We have difficulty seeing how an 'expert' tribunal could come to those conclusions on the facts before it", would you?

Bit more humility, lads and lasses. It's the Kiwi way.

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