Representing Colin Firth or Mr Darcy: can competition law handle the reality of modern agents?

Abstract:

Regulators and courts have struggled to apply competition law to agency arrangements. In particular, there has been a failure to understand that modern agents frequently provide a platform, offering both principals and their ultimate customers an efficient marketplace in which to meet. European law and recent developments in Australia reflect a tendency to require agents to mimic the characteristics of an employee or risk being treated as independent distributors. Such a binary approach, however, is anathema to the fundamental principle that the law be neutral in its treatment of different business models. While agency arrangements should not be exempted from the operation of competition law, the law must be applied in a manner consistent with the ultimate objectives of protecting the competitive process and ensuring efficient outcomes.