Generic competition law as a regulator
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Paul Scott “Competition Law and Policy: Can a Generalist Law be an Effective Regulator?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). One of the concerns the Privy Council and the United States Supreme Court has had with refusals to deal and essential facilities cases is that they essentially force the courts to become regulators.[123] The courts eschew doing so. Arguably the courts' reluctance to do so may have had the effect of reducing the effectiveness of section 36. The High Court in Bay of Plenty Electricity referred to this problem.[124] However, perhaps the concern is overblown. The objections to courts overseeing access are familiar. They do not like to do so. Cooke P noted in Telecom v Clear: "We are not a price-fixing authority".[125] As Judge Easterbrook has observed,[126] courts should not function as "little versions of the Office of Price Administration and assess the 'cost justification' for prices charged". Courts lack the expertise to do so because it requires an in-depth examination of all the costs of both incumbent and access seeker. It is hard for generalist courts to develop a price where there has been no previous dealing and so the courts would have to review access prices regularly.[127] As for New Zealand, the presence of lay members on the High Court removes the objection based on lack of expertise. Ironically, access based on the ECPR alleviates concerns as well.[128] It only requires the monopolists' costs to establish profit and input cost. Courts need similar information to evaluate predatory pricing claims.[129] No one claims this is too difficult.