- www.unctad.org/en/docs/tdrbpconf7d6_en.pdf.
- Ibid.
- www.aph.gov.au/senate/committee/economics_ctte/bank_mergers_08/index.htm
- www.aph.gov.au/senate/committee/economics_ctte/bank_funding_guarantees_09/index.htm
- There have been five other inquiries into the banking and financial sector in Australia since federation, including:
- The Royal Commission appointed to inquire into the monetary and banking systems of Australia: 1935–37;
- The Committee of Inquiry into the Australian financial system (“the Campbell Inquiry”): 1979–81;
- The Committee to review the Australian financial system (“the Vic Martine Committee”): 1983–84;
- The House of Representatives Standing Committee on finance and public administration inquiry into banking and deregulation (“the Stephen Martin Committee”): 1990–91;
- The Financial System Inquiry (“the Wallis Committee”): 1996–97. Each of these inquiries also resulted from major economic and financial crises. For example, the Royal Commission of 1935–37 arose as a result of the Great Depression; the Campbell and Vic Martin inquiries arose because of problems generated by the high inflation of the late 1970s and early 1980s; the Stephen Martin and Wallis inquiries were the result of the recession that took place in the early 1990s and the associated financial collapses (and near collapses) of the time.
- Australia's “Big Four” banks are the Australia and New Zealand Banking Group Ltd, the Commonwealth Bank of Australia, the National Australia Bank and Westpac Banking Corporation.
- Senate Economic References Committee, “Competition within the Australian Banking Sector” (6 May 2011), http://www.aph.gov.au/senate/committee/economics_ctte/banking_comp_2010/report/index.htm.
- Australian Bankers' Association, “Submission to the Inquiry into Competition within the Australian Banking Sector”, 3 December 2010.
- The Treasury, “Submission to the Inquiry into Competition within the Australian Banking Sector”, December 2010.
- The Competitive and Sustainable Banking System package addresses three key streams of reforms that focus on: o empowering consumers to get a better deal (from the banks); o supporting small lenders to compete with big banks; o securing the long-term safety and sustainability of the Australian financial system. o See Deputy Prime Minister and Treasurer, the Hon Wayne Swan, “A Competitive and Sustainable Banking System”, Media Release No 91, 12 December 2010: http://ministers.treasury.gov.au.
- The Treasury, “Competitive and Sustainable Banking”, 12 December 2010 (www.treasury.gov.au/banking.)
- The current issues surrounding price signalling include whether it should be against the law for competitors to exchange infor mation about future prices, and if so, how should any new law treat a legitimate rationale for the announcement of future increase in prices (such as a need to notify a wider customer base of such an increase); whether the current law is sufficient to enable the ACCC to successfully bring a prosecution against a person or company, for making known to a competitor information about their future prices (and what happens if the competitor does not act on that information but appears to make an unilateral and independent decision in relation to its prices); and whether any new law should be based on the need for there to be a detrimental effect on the competition process (and if so, how significant should the detriment be). At the time of writing, the Australian government is proposing to introduce a Bill into Parliament to outlaw price signalling, but has not as yet done so.
- Supra n 11.
- L Cejnar, “The Impact of the Global Financial Crisis on Com petition Policy in the Australian Banking Sector'”(2009) 3 Law and Financial Markets Review 449.
- On 21 June 2010, the New Zealand Commerce Commis sion also approved AMP's proposal to merge with AXA. The Commission was satisfied that the acquisition was not likely to substantially lessen competition under the New Zealand Com merce Act 1986.
- ACCC Merger Guidelines 2008.
- ACCC Public Competition Assessment, National Australia Bank Ltd – Proposed Acquisition of AXA Asia Pacific Holdings Limited and AMP Ltd – Proposed Acquisition of AXA Asia Pacific Holdings Limited, 9 September 2010.
- Ibid, para 7.
- Ibid.
- Ibid, para 20.
- Ibid, paras 123–24.
- Productivity Commission Inquiry Report, “Review of Australia's Consumer Policy Framework” 05/2008 (www.pc.gov.au/publications); Council of Australian Governments (COAG), “Intergovernmental Agreement for the Australian Consumer Law” 2 July 2009 (www.coag.gov.au/intergov_agreements/index.cfm); and Outcomes of COAG Meeting of 2 October 2008 (www.coag.gov.au/coag_meeting_out-comes/2008-10-02/index.cfm).
- Ibid.
- The Australian Securities and Investments Commission Act
- (Cth) mirrors the consumer protection provisions of the Competition and Consumer Act 2010.
- The Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) also contains new standard consumer product safety laws for consumer goods and product related services.
- 374 US 321 (1963).
- Developed and administered by the US Department of Justice (Antitrust Division) and the US Federal Trade Commission.
- S 7 of the Clayton Act 1914 states: “No person engaged in commerce… shall acquire… the whole or any part of… another person engaged also in commerce… where in any line of commerce or in… any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”
- 374 US 321 (1963).
- E Pekarek and M Huth, “Bank Merger Reform Takes an Extended Philadelphia National Bank Holiday” (2008) 13(4) Fordham Journal of Corporate and Financial Law 597.
- C Felsenfeld, “The Antitrust Aspects of Bank Mergers” (2008) 13(4) Fordham Journal of Corporate and Financial Law 508.
- Pekarek and Huth, supra n 30, 606.
- 376 US 665 (1964).
- 399 US 350 (1970).
- Pekarek and Huth, supra n 30, 649.
- Ibid.
- Horizontal Merger Guidelines 2010, esp paras 4 and 5 (www.justice.gov/atr/public/guidelines/hmg-2010.html).
- The HHI provides a measure of the size of firms vis-à-vis the industry as a whole, and is an indicator of the level of competition.
- “2010 Guidelines More Accurately Represent Agencies' Merger Review Process”, Federal Trade Commission Press Release, 19 August 2010 (www.ftc.gov/opa/2010/08/hmg.shtm).
- The Bank Merger Competitive Review guidelines, which the federal banking agencies and the Department of Justice developed in 1995 to facilitate the competitive review of bank mergers, remain unchanged. The Bank Merger Competitive Review guidelines can be found at www.justice.gov/atr/public/premerger.htm.
- See Dodd–Frank Wall Street Reform and Consumer Protec tion Act 2010, Title I: Systemic Risk Regulation, esp s 111.
- Ibid, esp ss 123, 171 and 174.
- The Secretary of the Treasury must approve any lending programme and such programmes cannot be to aid a failing financial company.
- See Dodd–Frank Wall Street Reform and Consumer Protec tion Act 2010 esp s 214.
- See Dodd–Frank Wall Street Reform and Consumer Protec tion Act 2010, Title II: Orderly Liquidation Authority, Title VI: Bank Holding Company Regulatory Enhancements and Title VII: Wall Street Transparency and Accountability.
- Ibid, especially ss 214, 716.
- D Gerard, “Managing the Financial Crisis in Europe: Why Competition Law Is Part of the Solution, Not of the Problem” [2008] Global Competition Policy December (www.globalcom-petitionpolicy.org).
- European Commission, “State Aid: Commissioner Kroes Briefs Economic and Finance Ministers on Financial Crisis Meas ures”, press release MEMO/08/757, 2 December, 2008:.
- Gerard, supra n 47, 8.
- D Gerard, “EC Competition Law Enforcement at Grips with the Financial Crisis: Flexibility on the Means, Consistency in the Principles” [2009] Concurrences, Revue des droits de la con currence no 1, 46–62; “Declarations on a Concerted European Action plan of the Euro Area Countries“, 10 October 2008 (www.ue2008.fr); and “Conclusions of the ECOFIN Council”, Luxembourg, 7 October 2008 (Doc 13784/08).
- European Council of October 15 and 16, 2008: Presidency Conclusions (Doc 14368/08).
- Formerly Art 87 of the European Community Treaty.
- Gerard, supra n 50, 46.
- Ibid.
- Ibid.
- N Kroes, “Dealing with the Current Financial Crisis”, address to the Economic and Monetary Affairs Committee, European Parliament, Brussels, Speech/08/498, 6 October 2008 (http://ec.europa.eu/comm./competition/speeches/index_2008.html).
- Cejnar, supra n 14.
- B Addy, A Banicevic and M Katz, “Antitrust Legislation and Policy in a Global Economic Crisis – A Canadian Perspective”, Global Competition Policy Online, December 2008 (www.globalcompetitionpolicy.org).
- Report of the High Level Group on Financial Supervision in the EU chaired by Jacques de Larosière, Brussels, 25 February 2009 (“the de Larosière Report”).
- Ibid, paras 40 and 42.
- Ibid, paras 42, 78, 105 and 150.
- See http://ec.europa.eu/internal_market/securities/docs/esc/meetings/2009-11-05-infoletter_en.pdf.
- Ibid, 59 and 60.
- Ibid.
- “The Turner Review: A Regulatory Response to the Global Banking Crisis”, Financial Services Authority (UK), March 2009, para 1.1 (see www.fsa.gov.uk/pubs/other/turner_review.pdf).
- Ibid, para 1.4(iv).
- Ibid, ch 1.
- There was also significant extension of cross-border retail activ ity, particularly in Europe – with, for instance, the Icelandic and Irish banks and ING being active gatherers of retail deposits in the UK, either through physical branches or online: see The Turner Review, supra n 67, para 1.3.
- Ibid, para 1.2.
- Ibid.
- The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008.
- The Tur ner Review, supra n 65, para 1.4.
- Ibid, para 1.3.
- Ibid, see particularly Box 1C: “Lessons from the Icelandic Banking Crisis”.
- Ibid, para 1.4.
- Ibid, see Introduction: “Actions Required to Create a Stable and Effective Banking System” and Box 1C: “Lessons from the Icelandic Banking Crisis” at point 28.
- Ibid, point 8.
- Chaired by Sir John Vickers.
- “Vickers in a Twist”, The Economist 29 January 2011, 67.
- Ring-fencing is the identification and separation of business activities, costs, and decision-making within an integrated entity where part of the entity is providing monopoly serv ices and another is providing services in a competitive market. Ring-fencing obligations are often imposed on (regulated) companies to prevent anti-competitive conduct by particu lar monopolies and to ring-fence particular businesses from involvement in commercial activities.
- Supra n 78.
- Final Report of the National Commission on the Causes of the Financial and Economic Crisis in the United States, Pursuant to Public Law 111–21, US Government Edition, January 2011.
- Ibid.
- J Rich and T Scriven, “Bank Consolidation Caused by the Financial Crisis: How Should the Antitrust Division Review ‘shotgun marriages’” [2008] The Antitrust Source December (www.antitrustsource.com); see also Federal Deposit Insurance Act 12 USC §1828(c)(5)(B).
- C Vajda, “The Banking Crisis and the EC State Aid Rules” [2009] Journal of International Banking and Financial Law 67.
Law and Financial Markets Review
Volume 5, 2011 - Issue 3