19 Antitrust Bull. 257 (1974)
Comments on Arguments in Justification of Agreements in Restraint of Trade - The United Kingdom, Australian and New Zealand Experience

handle is hein.journals/antibull19 and id is 281 raw text is: COMMENTS ON ARGUMENTS IN JUSTIFICATION
OF AGREEMENTS IN RESTRAINT OF TRADE-
THE UNITED KINGDOM, AUSTRALIAN AND
NEW   ZEALAND EXPERIENCE
by
WARREN PENGTLEY*
The attitudes of the United States and Canada are singu-
larly and perhaps uniquely uncompromising toward hori-
zontally agreed restraints of trade. Many other countries do
not ban such restraints per se but allow restraints if eco-
nomic benefits can be proven. It is the object of this article
to discuss industry attempts to justify agreements in re-
straint of trade and to reach some overall evaluation from
empirical observation. Do evaluations made by evaluative
tribunals support business arguments strongly urging the
benefits of restraint of trade by industry agreement?
1. SCOPE OF OBSERVATIONS
This article is limited to factual evaluations and is not a
discussion of theory. The theoretical basis of the competitive
model is not difficult to grasp. However, exemptions from
the overall theoretical model are generally claimed on the
basis of the alleged experience of industry. This being so,
it is not unreasonable to evaluate the industrial claims on
the empirical basis so often suggested by industry: How
has the experience of industry fared in its attempts to
justify agreements in restraint of trade when arguments by
industry groups have been subjected to unbiased evaluation?
For convenience, experience under the United Kingdom
legislation is taken as a basic source of evaluations. Refer-
ence is also made to Australian and New Zealand legislation
and case studies.
* Solicitor and Attorney of the Supreme Court of New South
Wales, Australia.

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