New Zealand Acts

COMMERCE (CARTELS AND OTHER MATTERS) AMENDMENT ACT 2017 - SECT 10

10 New sections 44A and 44B inserted

The following sections are inserted after section 44 :

44A Exceptions in relation to international liner shipping services

1 Nothing in section 27(1) applies to a person in relation to a provision of a contract, arrangement, or understanding if, at the time of entering into or arriving at the contract, arrangement, or understanding, the circumstances in subsection (6) apply.

2 Nothing in section 27(2) applies to a person in relation to a provision of a contract, arrangement, or understanding if, at the time of giving effect to the provision, the circumstances in subsection (6) apply.

3 Nothing in section 27(4) affects the enforceability of a provision in any contract to which subsection (1) or (2) applies.

4 Nothing in section 30(a) applies to a person in relation to a cartel provision that has the effect, or likely effect, of restricting output or market allocating if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision, the circumstances in subsection (6) apply.

5 Nothing in section 30(b) applies to a person in relation to a cartel provision that has the effect, or likely effect, of restricting output or market allocating if, at the time of giving effect to the provision, the circumstances in subsection (6) apply.

6 The circumstances are that—

a) the person and all other parties to the contract, arrangement, or understanding that contains the provision are supplying an international liner shipping service in co-operation with each other; and

b) the co-operation improves the service supplied to owners or consignors of goods carried at sea; and

c) the provision relates to—

i) a specified activity carried out for the purposes of the co-operation; or

ii) an activity ancillary to a specified activity that is reasonably necessary for the purposes of the co-operation.

7 For the purposes of subsection (6)(a) ,
"parties to the contract, arrangement, or understanding" excludes persons who are parties only because section 30B(a) applies.

8 In this section,—  
"specified activity" means any of the following:  

a) the co-ordination of schedules and the determination of port calls:

b) the exchange, sale, hire, or lease (including the sublease) of space on a ship:

c) the pooling of ships to operate a network:

d) the sharing or exchanging of equipment such as containers:

e) capacity adjustments in response to fluctuations in supply and demand for international liner shipping services.

44B Further exception in relation to international liner shipping services (price fixing in relation to space on ship)

1 Nothing in section 30(a) applies to a person in relation to a cartel provision that has the effect, or likely effect, of price fixing if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision, the circumstances in subsection (3) apply.

2 Nothing in section 30(b) applies to a person in relation to a cartel provision that has the effect, or likely effect, of price fixing if, at the time of giving effect to the provision, the circumstances in subsection (3) apply.

3 The circumstances are that—

a) the person and all other parties to the contract, arrangement, or understanding that contains the cartel provision are supplying an international liner shipping service in co-operation with each other; and

b) the co-operation improves the service supplied to owners or consignors of goods carried at sea; and

c) the provision relates to the exchange, sale, hire, or lease (including the sublease) of space on a ship between the person and 1 or more parties to the contract, arrangement, or understanding; and

d) the exchange, sale, hire, or lease (including the sublease) is carried out for the purposes of the co-operation.

4 For the purposes of subsection (3)(a) ,
"parties to the contract, arrangement, or understanding" excludes persons who are parties only because section 30B(a) applies.