Issue 24: The ongoing relevance of counterfactuals
This issues considers the “take advantage” element of section 46 (misuse of market power) & its application via the counterfactual. Is it as difficult as so often stated? What could (should) be done instead? Whatever happens next, the counterfactual will be around for a while – both as old conduct comes to light and as the courts continue to search for a causal link between market power and problematic conduct. So here’s our take on things, together with a short discussion on purpose.