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Agreements In Restraint Of Trade Under Competition Law

The restriction could also be challenged under legislation that takes into account certain contractual terms that are unfair, unfair, severe or oppressive. Contracting parties will often develop restriction clauses to provide for different levels of withholding, in the hope that if one or more restrictions are deemed inappropriate, others will nevertheless survive. These are referred to as general clauses and can be effective, unless they are uncertain (referring to normal contractual principles) and provided that the parties have actually attempted to define an appropriate restriction and have not left it to the court to “enter into their contract for them. The more restrictions and/or combinations of restrictions, the more likely it is that the parties have not actually attempted to define protection. See z.B. Lloyd`s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505. Is a trade restriction therefore applicable if it is not contrary to the law? Even if, for example, a restriction within the meaning of Mitchel and Addyston Pipe is necessary and complementary, it may constitute an inappropriate restriction on trade if their anti-competitive effects and the resulting harm to the public interest outweigh their advantages. In the Polygram case, Richter ginsburg said the case — Peninsular Securities vs. Dunnes Stores — concerned the applicability of a restrictive agreement in a lease agreement as part of a new shopping center development. As part of the lease, the owner (who was the developer) undertook to prevent competition with an anchor tenant in the mall.

The case concerned the Trade Limitation Act: in essence, whether the doctrine of trade restriction was in force. It did not address further the question of whether the covenant, if the teaching was reflected in the act, was “reasonable” and therefore enforceable. . . .

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