New Zealand Acts

COMMERCE ACT 1986 - SECT 31

31 Exception for collaborative activity

1 Nothing in section 30(1)(a) applies to a person in relation to a cartel provision if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision,—

a) the person and 1 or more other parties to the contract, arrangement, or understanding are involved in a collaborative activity; and

b) the cartel provision is reasonably necessary for the purpose of the collaborative activity.

1A Nothing in section 30(1)(ab) applies to a person in relation to a cartel provision if, at the time of giving, or requiring the giving of, a covenant that contains the provision,—

a) the person and 1 or more other parties to the covenant are involved in a collaborative activity; and

b) the cartel provision is reasonably necessary for the purpose of the collaborative activity.

2 Nothing in section 30(1)(b) applies to a person in relation to a cartel provision if, at the time of giving effect to the cartel provision,—

a) the person and 1 or more other parties to the contract, arrangement, understanding, or covenant that contains the provision are involved in a collaborative activity; and

b) the cartel provision is reasonably necessary for the purpose of the collaborative activity.

3 Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that constitutes a restraint of trade if—

a) the person and 1 or more other parties to the contract, arrangement, understanding, or covenant that contains the provision were involved in a collaborative activity that has ended; and

b) the cartel provision was reasonably necessary for the purpose of the collaborative activity; and

c) the collaborative activity did not end because the lessening of competition between any 2 or more parties became its dominant purpose.

4 In this Act,
"collaborative activity" means an enterprise, venture, or other activity, in trade, that—

a) is carried on in co-operation by 2 or more persons; and

b) is not carried on for the dominant purpose of lessening competition between any 2 or more of the parties.

5 The purpose referred to in subsection (4)(b) may be inferred from the conduct of any relevant person or from any other relevant circumstance.

History: Section 31: replaced, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).   Section 31(1): amended, on 8 April 2021, by section 6(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).     Section 31(1A) heading: inserted, on 5 April 2023, by section 16(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 31(1A): inserted, on 5 April 2023, by section 16(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 31(2): amended, on 8 April 2021, by section 6(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).     Section 31(2)(a): amended, on 5 April 2023, by section 16(2) of the Commerce Amendment Act 2022 (2022 No 11).     Section 31(3): amended, on 8 April 2021, by section 6(3) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).     Section 31(3)(a): amended, on 5 April 2023, by section 16(3) of the Commerce Amendment Act 2022 (2022 No 11).     Section 31(3)(a): amended, on 26 October 2018, by section 19 of the Commerce Amendment Act 2018 (2018 No 42).