THE LACK OF AN APPROPRIATE CAUSATION FRAMEWORK IN COMPETITION LAW PROCEEDINGS UNDER THE COMPETITION ACT, 1998

Abstract

Causation is one of the most under-utilised principles in public competition law. This increases the risk that defendants in competition proceedings, in particular, dominant firms in exclusionary abuse of dominance cases, may be found liable for market distortions that cannot satisfactorily be linked to their conduct. Having regard to the substantial financial penalties often levied against dominant firms found to have abused their dominant position, the central argument of this paper is that causation must be recognised and dealt with in competition proceedings as a fundamental legal principle that is central to competition liability. To this end, the paper proposes that the common-law principle of causation developed in tort law or delict can be utilised in developing an appropriate causation framework for public competition law.