The Competition Act 2002 provides for prohibition of abuse of dominant position. However, the provisions of unfair trade practices earlier covered by the Monopolies and Restrictive Trade Practices Act, 1969,are not covered under the competition law. The apparent effect of the two being quite similar, there is a considerable possibility that a situation very close to unfair trade practices may be held to be an abuse of dominant position. The difference being very close, the article looks at the penalty handed out to DLF Ltd for abuse of dominant position from this perspective.
The Competition Act 2002 provides for prohibition of abuse of dominant position. However, the provisions of unfair trade practices earlier covered by the Monopolies and Restrictive Trade Practices Act, 1969,are not covered under the competition law. The apparent effect of the two being quite similar, there is a considerable possibility that a situation very close to unfair trade practices may be held to be an abuse of dominant position. The difference being very close, the article looks at the penalty handed out to DLF Ltd for abuse of dominant position from this perspective.
India: Prohibition of Anti-Competitive Agreements and Abuse of Dominant PositionKK SHARMA LAW OFFICES
“Unlike the time when recall value of competition was associated only with examinations or sports, the awareness about competition law has come a long way when almost every other day CCI is in the news for reprimanding the erring
market players. Fines for anti-competitive conduct are huge as seen in cases such as that of DLF and cement companies. Having completed a little over four years of active enforcement and nearly ten years of advocacy, CCI has carved a niche for
itself. The author, Mr. K K Sharma, Chairman, KK Sharma Law Offices and former Director General, CCI, having the rare privilege of both drafting and implementing the law as well as being at the cutting edge by way of sculpting the
very first investigations and heading Merger Control and Anti-trust Divisions looks back and sums up the four years of cartel enforcement in India in this article.“
What to Look out for while choosing Arbitration ahead of Regular Litigation.
Essentials of an Arbitration Agreement.
Arbitration Act | ad hoc |Institutional Arbitration |
This presentation discusses the question as to whether a statute on mediation is required to be enacted in India. It argues that an ADR code has to be enacted so that dispute and its resolution are seen holistically.
This document provides information about purchasing a BUSN 420 Final Exam from an online test preparation service. It includes the link to purchase three different exam sets, each containing short essay questions and multiple choice questions. It also provides contact information for the test preparation service.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
At the root of appeals from judgments in commercial cases is the burning question: Does the result make sense from a business perspective? or put in more legally-eloquent language: Does this result meet the test of commercial reasonableness? "Commercial Reasonabless" is a concept Canadian courts address frequently to determine if business conduct or a result makes sense.
This paper will show that in commercial appeals, the Court of Appeal generally operates on the principle of commercial reasonableness. If the relief sought is not commercially reasonable, then you are unlikely to achieve a successful result for your client. I hope to show that appellate courts in Ontario approach appeals involving commercial disputes by asking whether the trial judge’s decision was commercially reasonable. In short, The court will not adopt an interpretation that is clearly commercially absurd.
The author is a senior business litigation and arbitration lawyer in Toronto who has argued many business appeals in the Ontario Court of Appeal. He is also an experienced trial and arbitration counsel. Senior partner of Ellyn Law LLP Business Litigation & Arbitration Lawyers, Mr. Ellyn heads a team of competent litigation lawyer who are at the vanguard of developments of business litigation and arbitration in Ontario. Igor Ellyn is also the Chair of the Business Litigation & Arbitration Practice Group of INBLF.com, the International Network of Boutique Law Firms.
The document summarizes key information for motor vehicle dealers regarding franchise agreements and the current legislative landscape in Australia. It notes that while there is no ideal franchise agreement, recent and proposed changes to laws such as the Franchising Code of Conduct may help improve protections for dealers. It outlines challenges facing the Australian automotive industry and reviews existing legal protections for franchise agreements from unfair contract terms and unjust conduct. The presentation provides an overview of relevant laws and regulations regarding franchise agreements in Australia.
The Competition Act 2002 provides for prohibition of abuse of dominant position. However, the provisions of unfair trade practices earlier covered by the Monopolies and Restrictive Trade Practices Act, 1969,are not covered under the competition law. The apparent effect of the two being quite similar, there is a considerable possibility that a situation very close to unfair trade practices may be held to be an abuse of dominant position. The difference being very close, the article looks at the penalty handed out to DLF Ltd for abuse of dominant position from this perspective.
India: Prohibition of Anti-Competitive Agreements and Abuse of Dominant PositionKK SHARMA LAW OFFICES
“Unlike the time when recall value of competition was associated only with examinations or sports, the awareness about competition law has come a long way when almost every other day CCI is in the news for reprimanding the erring
market players. Fines for anti-competitive conduct are huge as seen in cases such as that of DLF and cement companies. Having completed a little over four years of active enforcement and nearly ten years of advocacy, CCI has carved a niche for
itself. The author, Mr. K K Sharma, Chairman, KK Sharma Law Offices and former Director General, CCI, having the rare privilege of both drafting and implementing the law as well as being at the cutting edge by way of sculpting the
very first investigations and heading Merger Control and Anti-trust Divisions looks back and sums up the four years of cartel enforcement in India in this article.“
What to Look out for while choosing Arbitration ahead of Regular Litigation.
Essentials of an Arbitration Agreement.
Arbitration Act | ad hoc |Institutional Arbitration |
This presentation discusses the question as to whether a statute on mediation is required to be enacted in India. It argues that an ADR code has to be enacted so that dispute and its resolution are seen holistically.
This document provides information about purchasing a BUSN 420 Final Exam from an online test preparation service. It includes the link to purchase three different exam sets, each containing short essay questions and multiple choice questions. It also provides contact information for the test preparation service.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
At the root of appeals from judgments in commercial cases is the burning question: Does the result make sense from a business perspective? or put in more legally-eloquent language: Does this result meet the test of commercial reasonableness? "Commercial Reasonabless" is a concept Canadian courts address frequently to determine if business conduct or a result makes sense.
This paper will show that in commercial appeals, the Court of Appeal generally operates on the principle of commercial reasonableness. If the relief sought is not commercially reasonable, then you are unlikely to achieve a successful result for your client. I hope to show that appellate courts in Ontario approach appeals involving commercial disputes by asking whether the trial judge’s decision was commercially reasonable. In short, The court will not adopt an interpretation that is clearly commercially absurd.
The author is a senior business litigation and arbitration lawyer in Toronto who has argued many business appeals in the Ontario Court of Appeal. He is also an experienced trial and arbitration counsel. Senior partner of Ellyn Law LLP Business Litigation & Arbitration Lawyers, Mr. Ellyn heads a team of competent litigation lawyer who are at the vanguard of developments of business litigation and arbitration in Ontario. Igor Ellyn is also the Chair of the Business Litigation & Arbitration Practice Group of INBLF.com, the International Network of Boutique Law Firms.
The document summarizes key information for motor vehicle dealers regarding franchise agreements and the current legislative landscape in Australia. It notes that while there is no ideal franchise agreement, recent and proposed changes to laws such as the Franchising Code of Conduct may help improve protections for dealers. It outlines challenges facing the Australian automotive industry and reviews existing legal protections for franchise agreements from unfair contract terms and unjust conduct. The presentation provides an overview of relevant laws and regulations regarding franchise agreements in Australia.
The document provides guidance for NBFCs on conducting arbitral proceedings as an alternative to dispute resolution. It outlines the basic process, including pre-arbitration steps like case identification, selecting an arbitrator and counsel. During arbitration, key steps include filing statements of claim and reply, submitting evidence and witnesses, and framing issues. Post arbitration involves receiving and enforcing the award, including through attachment of property or garnishee orders. Supplements include fee schedules and forms to support the arbitration process.
SDVOSB LATVIAN CONNECTION LLC STATEMENTKeven Barnes
SDVOSB Latvian Connection LLC has filed several successful GAO protests against various government agencies for violations of federal procurement laws and regulations regarding small business set-asides. These protests resulted in legal opinions from the SBA supporting Latvian's position. However, Latvian has faced retaliation from FedBid and defacto debarment from various agencies such as the DoD and DoS that have prevented it from competing for contracts. The SBA has weighed in on several cases arguing that Latvian should have been allowed to bid and issues referred to the SBA for a Certificate of Competency.
In 2018, the Vietnam International Arbitration Center (VIAC) made a judgment in favor of the employer concerning a dispute over a Non-Disclosure and Non-Compete Agreement (NDA). The employee requested the Court to overturn VIAC’s arbitral award claiming that the dispute was outside the jurisdiction of the VIAC, but the Court rejected such request. The Court’s decision raises a question as to whether the VIAC has jurisdiction over disputes regarding NDAs. This issue of Labor Law Review presents our point of view on such a question and introduces the labor law updates from June 15, 2020, to July 27, 2020.
Key issues to consider when venturing into business in India. Some topics include repatriation of investments, taxation, court proceedings and IP issues.
The Small Business Administration (SBA) determined that the Department of State failed to properly refer the matter of Latvian Connection's exclusion from bidding to the SBA for a Certificate of Competency determination, as required by law. Specifically, Latvian was excluded from bidding by FedBid due to alleged integrity issues, which relates to responsibility rather than responsiveness. This should have been referred to SBA but was not. As a result, the SBA sustained Latvian's protest.
This document provides an overview of key sections from Chapters IV and V of the Arbitration and Conciliation Act relating to the jurisdiction of arbitral tribunals and the conduct of arbitral proceedings. It summarizes sections 16-21 which address an arbitral tribunal's jurisdiction to rule on its own authority, procedures for raising objections, interim measures, place of arbitration, and commencement of proceedings. The document also discusses related case laws that have supported arbitral tribunals' powers to determine procedures and evidence admissibility.
Consortium & Determination of "International" Character of Arbitration in IndiaBadrinath Srinivasan
This paper critically evaluates the recent decision of the Supreme Court of India in Larsen and Toubro Limited Scomi Engineering BHD v. Mumbai Metropolitan Region Development Authority (2018) where the Court laid down tests to determine the international character of an agreement in which the contractor-consortium consisted of a non-Indian entity.
This document discusses various professional opportunities for Chartered Accountants in the field of alternate dispute resolution (ADR) in India. It outlines roles that CAs can play as arbitrators, counsel for clients, experts for arbitral tribunals, and advisors on selecting appropriate ADR processes. CAs are recognized under Indian law to act as arbitrators due to their objective and balanced approach. The document also discusses international commercial arbitration and how CAs can assist with drafting arbitration clauses and representing clients in international arbitration cases.
The document provides information on arbitration and enforcement of foreign judgments in Kuwait. It discusses:
- International treaties Kuwait has signed related to arbitration and enforcement, including the New York Convention.
- Kuwait's arbitration system being similar to other jurisdictions, using both institutional and judicial arbitration.
- The main arbitration bodies in Kuwait operating under its civil and commercial laws.
- Foreign arbitration decisions and court decisions being recognized based on reciprocity.
- Mandatory procedures that must be followed in Kuwaiti arbitration, including requirements for arbitration agreements.
The document discusses ad hoc arbitration versus institutional arbitration. It provides details on:
- Institutional arbitration follows set rules through time-bound and impartial proceedings, with a defined cost structure and binding decisions. Only an arbitration clause in a contract is needed.
- Currently the major arbitration centers in India are the Nani Palkhiwala Arbitration Centre and the London Court of International Arbitration in India.
- Ad hoc arbitration involves parties selecting arbitrators without an arbitral body. Rules are set in the arbitration agreement and there are no administration fees.
- Most commercial arbitrations between private corporations are ad hoc but this often leads to problems like lack of impartiality and undefined timeframes.
Arbitration is a quasi-judicial method of settling civil disputes through a decision by one or more arbitrators rather than a court. Under Indian law, arbitration refers to the settlement of civil disputes related to money, property, or contract breaches by a quasi-judicial process with a decision by appointed arbitrators. For arbitration to occur there must be a written agreement between the parties to submit present or future disputes to arbitration, which may or may not name the arbitrator(s). Disputes can be referred to arbitration through the court when no suit is pending or when a suit is already pending.
The document provides guidance for answering company law exam questions involving the doctrine of ultra vires. It outlines three scenarios for answering a question about Ashbury Railway Carriage and Iron Co v Riche that has not been seen before: 1) panicking and moving to another question, 2) attempting to answer it based on general knowledge of ultra vires, or 3) fully answering it by explaining the case facts, rule, implications, and how it was later modified. The key points are that ultra vires means beyond a company's capacity, the Ashbury case established a strict interpretation of this in England, and Malaysia has since modified the doctrine through statute.
The document discusses the doctrine of binding non-signatories to arbitration agreements through group of companies theory. It traces the evolution of the doctrine through ICC cases like Dow Chemical v Isover Saint Gobain. While recognized in some jurisdictions like France, the doctrine is rejected in the UK and status varies in the US and India. The submissions note issues with expansive application of common intent and implications of jurisdictional approaches on forum shopping and ICC arbitrations.
Guide for Arbitration Clause in International Agreements in IndiaAnil Chawla
This Guide is useful for companies planning to develop international relationships. It gives an overview of arbitration clause that is an essential part of all international commercial agreements. It also gives an estimate of the costs involved under various options of international arbitration. The last chapter is about pre-arbitration clause which can help one avoid arbitration and associated legal costs.
Conduct of arbitral proceeding vaibhav goyalVaibhav Goyal
The document discusses the conduct of arbitral proceedings under the Arbitration and Conciliation Act of 1996. It summarizes key sections of the Act related to equal treatment of parties, determination of procedures, place of arbitration, and commencement of proceedings. The arbitrator is not bound by strict rules of evidence or civil procedure, but must follow principles of natural justice. The parties have freedom to agree on procedures and location, or the arbitrator will determine based on convenience.
09
20
07
01
- The document appears to be a workbook or study guide related to the legal environment of business. It is divided into multiple chapters that cover basic concepts, case studies, applied theory, and model questions.
- The chapters would provide explanatory notes, questions and answers related to topics such as basic legal concepts, business contracts, non-corporate business entities, corporate business entities, and other aspects of commercial and company law.
- The document is intended to help students learn and understand the legal principles and framework governing business operations in India. It examines various laws, rules and regulations from multiple sources that constitute the legal environment for conducting business activities.
International commercial arbitration under the icc rules a critical viewVioleta Arce
The document outlines the structure and process of international commercial arbitration under the ICC Rules, including the arbitration request, tribunal appointment, proceedings, and awards/costs. It discusses recent changes to address challenges like time and costs, multi-party disputes, and good faith. Other arbitration institutions like UNCITRAL, LCIA, and AAA are compared, with the ICC noted as having more structure, support and experience in international arbitration. The conclusion states the ICC and other rules are largely similar, so parties should consider their specific needs in choosing the best dispute resolution mechanism.
The document provides an index for MCQ questions from case studies issued by ICAI on various topics related to economic law, including competition law. It includes the following:
- An introduction and instructions on how to use the index, which directs the user to first find repeated case studies in a descriptive question index before referring to this MCQ index.
- A table with columns for the topic, question, and answer. Questions are sorted alphabetically and grouped by relevant law or chapter to help the user quickly find the answer to an MCQ.
- A caution that the answers are not updated for amendments to laws and the user should verify answers from source materials if unsure.
The document provides a summary of recent developments related to competition law and policy in India. It discusses five key cases:
1) The CCI closed an investigation against Tata Motors, finding a lack of adverse effects on competition from the alleged restrictions on dealers.
2) The CCI did not impose penalties on the Chandigarh Housing Board and two Chemists Associations after they took corrective action to address CCI's concerns.
3) The NCLAT upheld the CCI's dismissal of allegations against the PVR-INOX merger, agreeing the merger was a combination subject to Section 4, not Section 3.
4) The Madras HC upheld the CCI's power to
The document provides guidance for NBFCs on conducting arbitral proceedings as an alternative to dispute resolution. It outlines the basic process, including pre-arbitration steps like case identification, selecting an arbitrator and counsel. During arbitration, key steps include filing statements of claim and reply, submitting evidence and witnesses, and framing issues. Post arbitration involves receiving and enforcing the award, including through attachment of property or garnishee orders. Supplements include fee schedules and forms to support the arbitration process.
SDVOSB LATVIAN CONNECTION LLC STATEMENTKeven Barnes
SDVOSB Latvian Connection LLC has filed several successful GAO protests against various government agencies for violations of federal procurement laws and regulations regarding small business set-asides. These protests resulted in legal opinions from the SBA supporting Latvian's position. However, Latvian has faced retaliation from FedBid and defacto debarment from various agencies such as the DoD and DoS that have prevented it from competing for contracts. The SBA has weighed in on several cases arguing that Latvian should have been allowed to bid and issues referred to the SBA for a Certificate of Competency.
In 2018, the Vietnam International Arbitration Center (VIAC) made a judgment in favor of the employer concerning a dispute over a Non-Disclosure and Non-Compete Agreement (NDA). The employee requested the Court to overturn VIAC’s arbitral award claiming that the dispute was outside the jurisdiction of the VIAC, but the Court rejected such request. The Court’s decision raises a question as to whether the VIAC has jurisdiction over disputes regarding NDAs. This issue of Labor Law Review presents our point of view on such a question and introduces the labor law updates from June 15, 2020, to July 27, 2020.
Key issues to consider when venturing into business in India. Some topics include repatriation of investments, taxation, court proceedings and IP issues.
The Small Business Administration (SBA) determined that the Department of State failed to properly refer the matter of Latvian Connection's exclusion from bidding to the SBA for a Certificate of Competency determination, as required by law. Specifically, Latvian was excluded from bidding by FedBid due to alleged integrity issues, which relates to responsibility rather than responsiveness. This should have been referred to SBA but was not. As a result, the SBA sustained Latvian's protest.
This document provides an overview of key sections from Chapters IV and V of the Arbitration and Conciliation Act relating to the jurisdiction of arbitral tribunals and the conduct of arbitral proceedings. It summarizes sections 16-21 which address an arbitral tribunal's jurisdiction to rule on its own authority, procedures for raising objections, interim measures, place of arbitration, and commencement of proceedings. The document also discusses related case laws that have supported arbitral tribunals' powers to determine procedures and evidence admissibility.
Consortium & Determination of "International" Character of Arbitration in IndiaBadrinath Srinivasan
This paper critically evaluates the recent decision of the Supreme Court of India in Larsen and Toubro Limited Scomi Engineering BHD v. Mumbai Metropolitan Region Development Authority (2018) where the Court laid down tests to determine the international character of an agreement in which the contractor-consortium consisted of a non-Indian entity.
This document discusses various professional opportunities for Chartered Accountants in the field of alternate dispute resolution (ADR) in India. It outlines roles that CAs can play as arbitrators, counsel for clients, experts for arbitral tribunals, and advisors on selecting appropriate ADR processes. CAs are recognized under Indian law to act as arbitrators due to their objective and balanced approach. The document also discusses international commercial arbitration and how CAs can assist with drafting arbitration clauses and representing clients in international arbitration cases.
The document provides information on arbitration and enforcement of foreign judgments in Kuwait. It discusses:
- International treaties Kuwait has signed related to arbitration and enforcement, including the New York Convention.
- Kuwait's arbitration system being similar to other jurisdictions, using both institutional and judicial arbitration.
- The main arbitration bodies in Kuwait operating under its civil and commercial laws.
- Foreign arbitration decisions and court decisions being recognized based on reciprocity.
- Mandatory procedures that must be followed in Kuwaiti arbitration, including requirements for arbitration agreements.
The document discusses ad hoc arbitration versus institutional arbitration. It provides details on:
- Institutional arbitration follows set rules through time-bound and impartial proceedings, with a defined cost structure and binding decisions. Only an arbitration clause in a contract is needed.
- Currently the major arbitration centers in India are the Nani Palkhiwala Arbitration Centre and the London Court of International Arbitration in India.
- Ad hoc arbitration involves parties selecting arbitrators without an arbitral body. Rules are set in the arbitration agreement and there are no administration fees.
- Most commercial arbitrations between private corporations are ad hoc but this often leads to problems like lack of impartiality and undefined timeframes.
Arbitration is a quasi-judicial method of settling civil disputes through a decision by one or more arbitrators rather than a court. Under Indian law, arbitration refers to the settlement of civil disputes related to money, property, or contract breaches by a quasi-judicial process with a decision by appointed arbitrators. For arbitration to occur there must be a written agreement between the parties to submit present or future disputes to arbitration, which may or may not name the arbitrator(s). Disputes can be referred to arbitration through the court when no suit is pending or when a suit is already pending.
The document provides guidance for answering company law exam questions involving the doctrine of ultra vires. It outlines three scenarios for answering a question about Ashbury Railway Carriage and Iron Co v Riche that has not been seen before: 1) panicking and moving to another question, 2) attempting to answer it based on general knowledge of ultra vires, or 3) fully answering it by explaining the case facts, rule, implications, and how it was later modified. The key points are that ultra vires means beyond a company's capacity, the Ashbury case established a strict interpretation of this in England, and Malaysia has since modified the doctrine through statute.
The document discusses the doctrine of binding non-signatories to arbitration agreements through group of companies theory. It traces the evolution of the doctrine through ICC cases like Dow Chemical v Isover Saint Gobain. While recognized in some jurisdictions like France, the doctrine is rejected in the UK and status varies in the US and India. The submissions note issues with expansive application of common intent and implications of jurisdictional approaches on forum shopping and ICC arbitrations.
Guide for Arbitration Clause in International Agreements in IndiaAnil Chawla
This Guide is useful for companies planning to develop international relationships. It gives an overview of arbitration clause that is an essential part of all international commercial agreements. It also gives an estimate of the costs involved under various options of international arbitration. The last chapter is about pre-arbitration clause which can help one avoid arbitration and associated legal costs.
Conduct of arbitral proceeding vaibhav goyalVaibhav Goyal
The document discusses the conduct of arbitral proceedings under the Arbitration and Conciliation Act of 1996. It summarizes key sections of the Act related to equal treatment of parties, determination of procedures, place of arbitration, and commencement of proceedings. The arbitrator is not bound by strict rules of evidence or civil procedure, but must follow principles of natural justice. The parties have freedom to agree on procedures and location, or the arbitrator will determine based on convenience.
09
20
07
01
- The document appears to be a workbook or study guide related to the legal environment of business. It is divided into multiple chapters that cover basic concepts, case studies, applied theory, and model questions.
- The chapters would provide explanatory notes, questions and answers related to topics such as basic legal concepts, business contracts, non-corporate business entities, corporate business entities, and other aspects of commercial and company law.
- The document is intended to help students learn and understand the legal principles and framework governing business operations in India. It examines various laws, rules and regulations from multiple sources that constitute the legal environment for conducting business activities.
International commercial arbitration under the icc rules a critical viewVioleta Arce
The document outlines the structure and process of international commercial arbitration under the ICC Rules, including the arbitration request, tribunal appointment, proceedings, and awards/costs. It discusses recent changes to address challenges like time and costs, multi-party disputes, and good faith. Other arbitration institutions like UNCITRAL, LCIA, and AAA are compared, with the ICC noted as having more structure, support and experience in international arbitration. The conclusion states the ICC and other rules are largely similar, so parties should consider their specific needs in choosing the best dispute resolution mechanism.
The document provides an index for MCQ questions from case studies issued by ICAI on various topics related to economic law, including competition law. It includes the following:
- An introduction and instructions on how to use the index, which directs the user to first find repeated case studies in a descriptive question index before referring to this MCQ index.
- A table with columns for the topic, question, and answer. Questions are sorted alphabetically and grouped by relevant law or chapter to help the user quickly find the answer to an MCQ.
- A caution that the answers are not updated for amendments to laws and the user should verify answers from source materials if unsure.
The document provides a summary of recent developments related to competition law and policy in India. It discusses five key cases:
1) The CCI closed an investigation against Tata Motors, finding a lack of adverse effects on competition from the alleged restrictions on dealers.
2) The CCI did not impose penalties on the Chandigarh Housing Board and two Chemists Associations after they took corrective action to address CCI's concerns.
3) The NCLAT upheld the CCI's dismissal of allegations against the PVR-INOX merger, agreeing the merger was a combination subject to Section 4, not Section 3.
4) The Madras HC upheld the CCI's power to
This case involves an antitrust complaint filed with the Competition Commission of India (CCI) against Honda, Volkswagen, and Fiat alleging anticompetitive practices in restricting the availability of spare parts. The CCI investigation found that the car manufacturers were abusing their dominant position by restricting dealers from selling spare parts in the open market. The CCI imposed a penalty of 2% of total turnover on the car manufacturers for violating competition laws. The car manufacturers appealed the decision. The High Court upheld most of the CCI's findings and order, but declared one section of the Competition Act relating to CCI membership to be unconstitutional.
1. The Bombay High Court clarified that the CCI must determine its own jurisdiction before investigating allegations of cartelization among debenture trustees.
2. The Supreme Court admitted appeals by United Breweries and others challenging penalties imposed by CCI, and stayed recovery of the penalties subject to further deposits.
3. Key developments included the Competition (Amendment) Act being notified, constituting a committee on digital competition law, and CCI beginning examining anti-profiteering matters under GST.
Compared to the other enforcement provisions of the Act, the merger control
provisions, or regulation of combinations as these are called in India, are of more
recent origin. The regulations drafted by the Competition Commission of India
(the Commission) for regulation of the combinations, in an attempt to make the
combination regulations more business friendly, have given a window of not filing
the merger filings before the Commission in some cases of combinations where the
possibilities of the Appreciable Adverse Effect on Combination (AAEC) are lesser.
The question arises as to how to deal with the instances where the parties do not file
the details of any combination and the Commission is of the opinion that the
combination either causes or is likely to cause an AAEC in the relevant market.
The author, who was the architect of the introduction of schedule 1 for the
exempt type categories while drafting the combination regulations for India as
the first Head of Merger Control in India and thus making regulation of
combinations a reality in India, delves deep into the issue and looks at the possible
solutions. In his view, the Commission still has freedom to act against any
combination causing AAEC – whether above or below thresholds.
Presentation on The competition act(2002)satya pal
The document summarizes the key aspects of the Competition Act of 2002 in India. It discusses the objectives of eliminating anti-competitive practices and promoting fair competition. The main features covered are the prohibition of anti-competitive agreements such as cartels, abuse of dominant market positions, and regulations governing mergers and acquisitions. Enforcement is carried out by the Competition Commission of India through investigations and imposition of penalties. The act aims to protect consumer welfare and ensure fair competition in the market.
Article on teleInter- Regulatory Space : A case for healthy cooperation --- K...KK SHARMA LAW OFFICES
The Competition Commission of India (CCI) seeks to develop a formal consultation mechanism with sector regulators like the Department of Telecommunications (DoT) regarding merger and acquisition rules. The CCI's mandate under the Competition Act is to examine combinations (mergers and acquisitions) across all sectors that may have adverse competitive effects. Developing coordination between regulators could help avoid potential jurisdictional conflicts and regulatory uncertainty for businesses. The CCI aims to establish healthy cooperation with sector regulators based on their respective expertise to best promote competition while providing certainty to markets.
1. The document discusses judicial and legislative responses to the COVID-19 pandemic regarding the Insolvency and Bankruptcy Code (IBC) in India. The Supreme Court extended limitation periods for all legal proceedings. The NCLAT excluded lockdown periods from IBC resolution timelines. Regulations were amended to relax post-CIRP timelines by excluding lockdown periods.
2. The government increased the IBC default threshold from Rs. 1 lakh to Rs. 1 crore to provide relief to MSMEs. Notifications were issued to relax IBC timelines by excluding lockdown periods.
3. The changes aim to provide cushion to companies facing financial distress from COVID-19 and ease pressure on
This document provides a summary of developments in competition law from India and around the world. Some key points:
- In India, the Competition Commission of India (CCI) issued its first decision allowing banks to charge prepayment penalties on home loans, in a 4-2 majority decision.
- Internationally, the European Commission launched an antitrust investigation against Google for allegedly abusing its dominant position in online search. It also fined 11 air cargo carriers €799 million for operating a price fixing cartel.
- In other news, the CCI ordered investigations into complaints against real estate developers in India and a potential cartel in the Indian airline industry over increasing fares.
A 360 Degree Review of Penal Provisions’ Application under Competition Law ...KK SHARMA LAW OFFICES
Perhaps not many laws have been subject to so much public scrutiny as competition law either before its enactment or afterwards. Almost immediately after its enactment, just after a duly appointed Member had assumed office and before a duly appointed Chairman could enter office, the Competition Act, 2002(Act) was challenged on various counts. This resulted in a very strange situation. The Competition Commission of India (CCI) could not be called a Commission in terms of the Act which needed a minimum quorum of a Chairman and, at least, two Members for being a legally recognized Commission. So, the CCI remained a one Member body (not a full Commission) till as late as March 1, 2009 when, for the first time, a Chairman and two Members were in office and the CCI, in the eyes of law, was a full Commission. The enforcement powers to CCI came in stages. In first phase only advocacy functions were allowed. This was followed by antitrust enforcement powers being given to the Commission from May 20, 2009. Thereafter, regulations of combinations (popularly known as Merger Review) came into force with effect from June 1, 2011. There were always fears that the CCI may turn out to be as effective (or ineffective depending upon one’s perspective) as MRTPC. Now, that five years have passed since the time the CCI began to get its enforcement powers, it is high time to look back if the fears about the efficacy of the powers given to the CCI were justified or misplaced. The author, the only official in senior echelons of the CCI who not only saw the transition from a CCI doing only competition advocacy to a fully functional Commission but also played a very crucial role in this transition by way of being the very first Director General of the functional CCI, laying down the investigative framework of investigation, and later as the first head of Merger Control who gave the country its very efficient Merger Review Format, takes a look at this issue.
Ex-Parte Prima Facie order by the Competition Commission of India – A CritiqueKK SHARMA LAW OFFICES
Prima facie view or opinion as to existence or absence of a case by the Competition
Commission of India is an extremely crucial decision. Affirmative decision as to
existence of an anti competitive/abusive practice triggers a full fledged Inquiry.
Likewise, a prima facie view that there is no case of infringement of provisions of
Competition Act results in dropping of further proceedings. It is significant for
parties involved.
CCI issues supplementary order u/s 27 of the Competition Act in the DLF case ...rajesh
The above document is very helpful for people looking registering case agent Privet Builders how make term of doc which harm the customer/Buyer .
they charge Buyers 24% for delay payment and give only 5% if delay is from Buyers/customer side .
The recent CCI judgment on DLF case have given hope to the buyers by keeping there interest.
Judgement Date : 3rd January, 2013
A comparative study of the provisions of the Indian Competition Act, US Anti ...Pritam Pandey
This document provides an overview of competition law in India, the United States, and the United Kingdom. It discusses key provisions and comparisons. The main points are:
1) Competition law deals with restrictive business practices and market failures. The US Sherman Act of 1890 was one of the earliest such laws. India, UK, and over 100 other countries now have competition laws.
2) The Indian Competition Act covers anti-competitive agreements, abuse of dominant position, and combinations. It established the Competition Commission of India to enforce the act.
3) US and UK competition laws are more rigorously applied and enforced through criminal sanctions. Violations in India are larger in number but attract less regulatory attention.
The document summarizes key aspects of India's competition law framework. It outlines that competition law in India was triggered by the constitution and the first law was the Monopolies and Restrictive Trade Practices Act of 1969. This was replaced by the Competition Act of 2002 to promote competition and private enterprise.
The Competition Act established the Competition Commission of India and has four main parts - regulating anti-competitive agreements, abuse of dominance, combination regulation, and competition advocacy. It aims to facilitate competition, establish the CCI to prevent anti-competitive practices, promote market competition, protect consumer interests, and ensure trade freedom. The CCI has powers like imposing penalties, modifying or blocking combinations, and separating dominant enterprises.
This document provides a summary of recent taxation updates in India covering direct and indirect tax laws. It discusses key issues from recent case laws pertaining to direct and indirect taxes. Some of the direct tax issues covered in the document include transactions involving bogus shares being treated as a colorable device, rejection of a writ petition where an alternate remedy was available, allowing a writ petition for violation of principles of natural justice, and organizing the Indian Premier League not being considered a dilution of fundamental charitable objects. The document also provides summaries of recent advance tax rulings and notifications.
This document summarizes a Singapore Court of Appeal case that clarified principles for adjudicating claims under the Building and Construction Industry Security of Payment Act. The Court affirmed that an adjudication determination can be set aside for failing to consider an essential issue properly raised by the parties, in breach of natural justice. Specifically, the Court upheld setting aside a determination that did not address the respondent's claims regarding back charges and variation works owed to it. This confirms that while adjudications aim for rough justice, adjudicators must still apply their minds to all essential issues or risk their determinations being overturned.
The document summarizes the Commercial Division of High Courts Bill, 2009. The key points are:
1. The bill seeks to establish commercial divisions within each High Court to handle high value commercial disputes over Rs. 5 crores.
2. The commercial divisions will have original jurisdiction over such cases and introduce fast-track procedures to expedite case disposal within strict timelines.
3. Only disputes between merchants, bankers, and traders relating to commercial transactions and documents above the specified value threshold will fall under the jurisdiction of commercial divisions.
The Competition Act of 2002 established the Competition Commission of India (CCI) to prevent anti-competitive practices and promote competition. The CCI is tasked with investigating anti-competitive agreements, abuse of dominant market positions, and mergers and acquisitions. Parties to a combination are not required to notify the CCI, but the CCI can investigate combinations on its own. The CCI faces challenges due to overlapping jurisdictions, unrealistic timelines, lack of cooperation from foreign counterparts, and limited resources and infrastructure.
In our first edition of 2014, we:
• continue with our series on the new public procurement directive, this month analysing subcontracting under the new directive
• include articles on conflicts of interest in the shared services context and the new state aid de minimis regulation
• Anja Beriro discusses what is on the legal horizon for 2014.
Competition Law is in an evolutionary stage in India having completed a little over five years in India. The orders in the initial stage of enforcement have a huge impact on the progress of this law in the country. Here, K K Sharma ex Director General, CCI discusses the 3:2 order of CCI in Jaypee case. In this case by a slender majority of one, the Commission decided not to impose any fine on Jaypee group holding it not to be dominant in the relevant market. The Market definition itself was changed. Earlier DG was asked to investigate according to a particular market definition but when the report of DG was submitted , the majority did not agree and went back to earlier definition in which the group was not dominant. The author who , now, is Chairman, KK Sharma Law Offices discusses in detail this case in this article.
Merger Review process has evolved over a period of time. This is evident from the changing focus on consideration of efficiencies in merger analysis. However, a cross-country comparison shows that as of date consideration of efficiency has become almost an integral part of merger review. The article details this discussion.
While benefiting from the available best practices as compiled and recommended by the international competition network(ICN),India has ensured that the merger control regime adopted by India takes into account the ground economic realities of the country. Inter alia, the detailed factors of determination contain factors for consideration by the CCI which give CCI is enough flexibility to factor in the social realities by ensuring a fair merger review.The presentation analyses this and compares India's merger regime with the merger regime of some comparable countries.
The document provides a historical overview of India's economic policy and regulations regarding competition from the early 1950s to the present. It traces the transition from a command economy with extensive public sector control and regulations to a more liberalized market-oriented economy since 1991. Key reforms have included reducing licensing requirements, opening sectors to private competition, and abolishing price controls. This led to the enactment of the Competition Act of 2002 and establishment of the Competition Commission of India in 2003 to regulate combinations, dominant positions, and anticompetitive agreements. The CCI notifies and reviews mergers and acquisitions based on thresholds and assesses the impact on competition in the relevant market.
The document provides an overview of India's regulation of combinations (mergers and acquisitions) from early stages of planned economic development to the present status under the Competition Act, 2002. It traces the transition from extensive government controls to economic liberalization since 1991. The Competition Commission of India was established in 2003 to prevent anti-competitive practices, promote fair competition, protect consumer interests and ensure freedom of trade. Notifiable combinations above certain asset/turnover thresholds require suspension approval from CCI which assesses the combination based on factors like impact on competition and consumer welfare.
This document provides an overview of competition policy and law in India. It discusses the early stages of India's planned economic development and transition to economic reforms since 1991. This led to the enactment of the Competition Act of 2002 and establishment of the Competition Commission of India in 2003 to prevent anti-competitive practices. The CCI regulates combinations (mergers and acquisitions) by requiring compulsory notification above certain thresholds. Combinations are assessed based on their impact on competition and orders passed for approval or modification. Relevant provisions and procedures related to combination regulation aim to balance effective competition with business certainty.
This document summarizes key aspects of competition law in India related to the regulation of combinations or mergers and acquisitions. It outlines the thresholds and criteria for mandatory pre-notification of combinations, as well as the review process and factors considered in assessing potential anti-competitive effects. It also compares India's regulations with international best practices and jurisdictions. Penalties for non-compliance with the regulatory framework are also summarized.
The document provides an overview of competition policy and law in India. It discusses the evolution of competition law from the Monopolies and Restrictive Trade Practices Act (MRTP Act) of 1969 to the enactment of the Competition Act of 2002. Key highlights include:
- The MRTP Act was replaced as it had become obsolete with economic reforms since 1991 that focused on reducing regulations.
- The Competition Act of 2002 established the Competition Commission of India in 2003 to prevent anti-competitive practices, promote fair competition, protect consumer interests and ensure freedom of trade.
- The Act prohibits anti-competitive agreements, abuse of dominant position and regulates combinations. It provides the Commission powers to investigate cartels and impose penalties
This document summarizes India's new merger control regime established in 2011. Some key points:
- The Competition Commission of India was established to regulate combinations (mergers and acquisitions) that meet certain asset or turnover thresholds.
- Reviews must be completed within 210 days (180 days for simpler cases), similar to other major jurisdictions like the EU.
- Factors for assessing potential anti-competitive effects are listed. Thresholds were increased by 50% and include both domestic and international transactions.
- The CCI can approve deals, approve with modifications, or not approve. Silence within the review period means approval.
The document provides an overview of the procedures for investigating combinations (mergers and acquisitions) by the Competition Commission of India (CCI). It discusses key aspects of the regulatory framework including relevant sections of the Competition Act that establish thresholds and notification requirements for combinations. It also describes CCI's process for reviewing combinations, considering various factors to determine if the combination causes an appreciable adverse effect on competition. The document highlights challenges in enforcing competition laws for combinations and compares CCI's role to predicting outcomes like an astrologer.
The document discusses the interface between sector regulators and the Competition Commission of India (CCI). It notes that while sector regulators focus on technical standards and access in specific industries, the CCI promotes overall competition across sectors. There is potential for disagreements without clear jurisdiction delineation or coordination. However, coordination allows each to play distinct roles, with sector regulators considering competition and CCI overcoming market failures. The document outlines coordination mechanisms like information sharing and referrals between the CCI and sector regulators under various laws. It emphasizes promoting competition, efficiency, and consumer interests in all sectors.
The document summarizes key principles from the International Competition Network (ICN) regarding merger notification regimes. It discusses 9 recommended practices from the ICN, including having clear notification thresholds, reasonable review periods, procedural fairness, transparency, and protecting confidential information. For each practice, it provides India's position based on its new merger notification law, noting areas of alignment like review periods being similar to other jurisdictions, as well as aspects where guidelines will be further developed over time, like procedures for substantive assessment. The document aims to show how India's new regime follows ICN best practices to have an efficient and effective merger review process.
This document provides an overview of competition law and policy in India. It discusses the early stages of India's economic development which involved extensive public sector control and regulations. Economic reforms since 1991 have gradually reduced regulations and opened the economy to market forces. This led to the establishment of the Competition Commission of India in 2003 to administer the Competition Act of 2002. The Act prohibits anti-competitive agreements, abuse of dominant position, and regulates combinations or mergers above certain thresholds. It aims to prevent anti-competitive practices and promote competition for the benefit of consumers. The Commission has powers to investigate violations, impose penalties, and provide remedies.
This document summarizes the key regulations of the Competition Commission of India (CCI) regarding combinations. It discusses Regulations 5-7, 12, 18-22, 24, 26-27, 36, 39, 41, 46, 54-55 which cover notification procedures and timelines for combinations, flexibility in filing notices, fees, additional time provisions, acceptance of belated or revised notices, deemed approvals, expert assistance, opportunities to be heard, modifications to orders, independent trustees to oversee compliance, and confidentiality of information. The regulations aim to facilitate business transactions with no significant competition issues, provide flexibility, and follow international best practices of organizations like the International Competition Network.
This document discusses competition regulation and the relationship between sector regulators and competition authorities in various jurisdictions. It notes that most countries establish both sector regulators to oversee specific industries as well as general competition authorities. However, overlaps and conflicts can sometimes arise between the two. The document explores various approaches that countries take to managing the relationship and resolving potential conflicts between these two types of regulatory bodies, including through statutory provisions for consultation, concurrence on decisions, and mechanisms for resolving disputes. It provides examples from jurisdictions like the EU, UK, Australia and others to illustrate different models for structuring the high-level relationship between sector regulators and competition authorities.
This document discusses competition and regulation in India. It begins by outlining the rationale for competition and the benefits it provides like efficiency and lower prices. However, perfect competition is difficult to achieve in reality. Some sectors require regulation due to natural monopolies or to ensure standards and access. Both competition laws and sector regulations aim to promote consumer welfare, but they can sometimes overlap or conflict in their approaches. The document examines regulatory frameworks in other countries and how they coordinate competition authorities and sector regulators. It argues that in India, laws could better delineate jurisdictions and provide for consultation between authorities to minimize conflicts and maximize benefits of competition.
A exposition on the provisions relating to the anti-competitive agreements and cartels during a seminar on competition law and policy in Kolkatta in 2009 as a part of the advocacy functions of the Competition Commission of India(CCI).
As a part of the advocacy efforts of the Competition Commission of India(CCI),a presentation to explain the provisions of the Competition Act, 2002, in so far as they relate to the abuse of dominant position in a conference in collaboration with Kerala High Court in Kochi.
A detailed presentation on the provisions of the Competition Act, 2002 ,in so far as it relates to the anti-competitive agreements and cartels during a seminar on competition policy and law in Kerala. This was a part of advocacy function of the Competition Commission of India (CCI).
The document summarizes the development and implementation of merger control regulations in India by the Competition Commission of India (CCI). It discusses how there was initial opposition to bringing merger control provisions into force, but that the CCI was finally able to notify final merger regulations in May 2011. It describes some initial amendments made by the CCI in 2012 and 2013 to refine the merger review process based on experience. It also notes that after over two years of implementation, it is an appropriate time to review the CCI's performance in regulating combinations and mergers under Indian competition law.
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Treading the Thin Wedge between "Unfair trade Practices" and "Abuse of Dominant Position"_manupatra
1. 2011] B-241
Treading the Thin Wedge between “Unfair Trade
Practices” and “Abuse of Dominant position”
Kaushal Kumar Sharma*
On 12th August, 2011, the Competition Commission of India (CCI), by an order
under Section 27 of the Competition Act, 2002 (the Act), held the DLF Ltd
guilty of abuse of dominant position under the Act and imposed a penalty of
Rs. 6,300 million. After holding the concerned enterprise guilty of abusing its
dominant position, the CCI had the option of levying a penalty of up to 10 per cent
of its average turnover for last three years. The CCI has charged penalty at
7 per cent stating that in view of the nature of violations, the penalty should be
harsh. Thus, in the opinion of CCI, the case called for some type of exemplary
penalty.
This article analyses the order of CCI. This includes the entire background in
which the order was passed, the improving track record of CCI, the signal the
order sends, the questions and hopes this order raises.
Last few months have seen the of law has been laid down for the moment.
Competition Commission of India (CCI) If they do not agree, they have the option
pass some affirmative orders after more of going before the Competition Appellate
than two years of its due constitution on Tribunal (COMPAT) under Section 53B
1st March, 2009 under Section 8 of the of the Act. After COMPAT has applied
Competition Act, 2002 (the Act). This is mind and given its finding, the party
good news. Any new law cannot evolve disagreed with—either the CCI or the
unless practiced. The competition law is enterprise(s) involved—may go to
no exception. Who is better placed to set Supreme Court under Section 53T of the
the ball rolling than the CCI? Act, if it so desires. The decision of the
The affected parties have the option to Supreme Court, if the matter reaches there
either agree or disagree with the views of or, in case it stops either at the level, of the
the CCI as expressed in the decisions CCI or the COMPAT is the finally settled
passed under Sections 27, 31 or 33 of the position of law at that particular point of
Act. If they agree, it is fine and the position time.
* Commissioner of Income Tax, Ministry of Finance, Government of India, and former Director
General & Head of Merger Control, Competition Commission of India. The views expressed
are personal.
COMPETITION LAW REPORTS (JUL-AUG 2011) 165
2. B-242 Competition Law Reports [Vol. 2
In this evolutionary process of than adequately amplifies that the higher
competition law, the CCI has an judiciary is quite appreciative of the basic
extremely important role. This role is that principles behind enactment of the
of the initiator of the process of evolution competition law in the country and the
of competition law.. Any hesitation for objectives of this law.
whatever reasons to reach appropriate In the orders passed recently, the CCI has
decisions or delay in pronouncing held the film producers/distributers
decisions for any reasons, whatsoever are guilty of anti-competitive conduct and
going to slow down this evolutionary levied a penalty of Rs. 1,00,000 each on
process. It is said that the “perfect” is the various parties involved. There may be
enemy of “good”. It is better to start than divergent views on the amount of
to keep on fearing a bad start in the form penalty finally imposed and its
of a bad order—just because of the fact justification after a long process of fact
that it has to wade through the appellate finding investigation by Director
machinery. It is especially important in General, entire process of inquiry by the
view of the fact that out of more than CCI, involving hearing a large number
90 orders passed by the CCI, the of parties over a long period of time,
affirmative orders can be counted on resources spent by CCI in defending
your finger despite India – like any other different challenges in various courts
economy in transition - being perceived involving a considerably long time and
a land full of anti-competitive practices. substantial resources. However, one
Therefore, it is heartening to note that the thing stands out and that is that is that
CCI has actually kick-started the process CCI is finally finding it feet and is in a
by passing a number of affirmative position of announcing decisions
decisions in the recent past. This sends a without fear or favour. May be the CCI is
strong message that the provisions of the maturing now.
Act are here to be enforced and the market The other matter adjudicated by the CCI
participants better be aware that the involves a case of predatory pricing — a
referee is watching them play. So long as tough issue generally speaking — even
the game is fair, they need fear nobody. in the developed jurisdictions. The job of
Commit a foul and be ready for a whistle the CCI was made easier by the fact that
and consequent action. In any case, no the enterprise alleged to be indulging in
decision of the Commission is final predatory pricing was not charging a
unless duly confirmed in the appellate finite amount as predatory price but a
structure - first by the COMPAT and then zero price. This was an important factor
by Supreme Court - envisaged under helping the CCI reach finality relatively
the Act. quickly. Compared to the case of film
No doubt, it is a fact that the competition producers/distributers and multiplex
law is new to our country and the association, the cases of DLF and MCX
capacity to understand and apply the have relatively been decided in a little
law would take sometime to develop. quicker manner. Hopefully, this
However, the Courts have shown enough indicates quickening of pace of decisions
mature understanding of the underlying by CCI in future.
philosophy behind the competition law. On 12 th August, 2011, the CCI passed
The decision of Hon’ble Supreme Court another landmark decision in Case No.
in the case of Competition Commission of 19 of 2010, on the basis of information
India v. Steel Authority of India Limited & filed on 5th May, 2010 by Belaire Owners
Another is a case in point which more Association against DLF and Ors. 1
1 MANU/CO/0044/2011
166 COMPETITION LAW REPORTS (JUL-AUG 2011)
3. Treading the Thin Wedge between “Unfair Trade Practices”
2011] and “Abuse of Dominant Position”
B-243
Announcing a decision in nearly the views expressed in this order.
15 months time from the filing of Further, while dealing with the
information for a young competition prepayment charges in a fixed pattern
agency is not bad. On the other hand, it printed agreement in which the consumer
would be stated to be rather prompt. does not a choice, the CCI stated:
The actual order of CCI, in case of Belaire …For the banking sector, prepayment
Owners Association against DLF, after charges are part of their overall
having enumerated the background, strategy and asset liability
information and proceedings in the management, while the consumer
previous part, begins from Paragraph 12 tends to look at them as barriers to ease
on Page 155 of the order. The issues of exit…
crystallised by the Commission are (Paragraph 15.1 of order dated
summarised in Para 12.1 of the order. 2nd December, 2010
These are: in Case No. 5/2009)
(1) Do the provisions of Competition In this case, justification for not treating
Act, 2002 apply to the facts and the prepayment penalty adversely
circumstances of the instant case? affecting the competition was that the
(2) What is the relevant market, in the state of competition in banking sector
context of Section 4 read with was healthy – with so many players and
Section 2(r), Section 19(5), the sector still registering growth:
Section 19(6) and Section 19(7) of Though the prepayment penalty is
the Competition Act, 2002? being charged by the banks, it caused
(3) Is DLF Ltd. dominant in the above no negative impact in the growth of
relevant market, in the context of the home loan business &
Section 4 read with Section 19(4) of consequently on competition.
the Competition Act? (Paragraph 18 of the order dated
(4) In case DLF Ltd. is found to be 2nd December, 2010
dominant, is there any abuse of its in Case No. 5/2009)
dominant position in the relevant It is not clear how a similar claim, if made
market by the above party? by developers, that the terms in the
The above would show that the issues agreement are a part of strategy as the
have been correctly identified by CCI in development involves money which, at
its order. Perhaps there may not be any times, is borrowed at huge interests,
two views on the issue. It is the therefore backing out by a person booking
adjudication part where the CCI had to the apartment should involve a fear of
do a tight rope walk between the “unfair forfeiture to ensure certainty for the
trade practices” and the provisions of project, can be countered. It may similarly
the Act. be claimed that, but for small periodic
fluctuations, the real estate sector is
The CCI has also passed a few orders in booming. Can it not be taken as a defence
the past. There has to be a consistency of for no adverse impact on competition of
approach in the decisions. In an earlier all the actions the enterprise is being
case of charging of prepayment penalty accused of?
by banks (Case No. 5 of 2009), the CCI
has given considerable importance to the Another, nearly similar, Case No. 15/2011
contract entered into between the lender of Balabhadra Residency Flat Owners
and the borrower. What needs to be seen Association, Hyderabad, was closed vide
is that how the views of the CCI, as order dated 5 th July, 2011, as not
expressed in that order, reconcile with adversely affecting competition.
COMPETITION LAW REPORTS (JUL-AUG 2011) 167
4. B-244 Competition Law Reports [Vol. 2
For legal certainty, it may be advisable Too much has been made out of the
for similar arguments leading to similar practice of giving readymade agreement
results. to the customer who does not have any
The last part of the order of CCI in DLF choice. The same issue came up before
case deals with the practices prevalent the Commission in bank prepayment
in the trade of real estate development. If penalty case referred to earlier wherein,
these are indeed industry practices-these by a majority order, the CCI found
should actually be being part of the order nothing wrong with the practice. On the
itself – it may give another defence to the contrary, it is held in the case of DLF that
enterprise in appellate proceedings. If all the agreements are one sided and this
the competitors are following certain practice, like others, has also been
common practices for whatever reasons, emulated by weak competitors. It has not
how the dominant player can be held been brought on record, if DLF was the
guilty of abuse of dominant position? In first to start the practice. This appears to
a scenario where a consumer willingly be an interesting argument. Para 12.103
chooses one of the available options - of the order in DLF case states:
under whichever circumstances In a competitive scenario, where the
including that of helplessness as all the enterprise indulges in such anti-
participants are following the same trend consumer conduct, there is sufficient
- in the market, can it be said that the competition in the market to provide
dominant player is abusing its position? easy alternatives for the consumers.
Is the consumer a victim in this case of It is not clear if the state of competition in
the prevalent “practices in the trade” or real estate sector is so bad that a buyer of
“abuse of dominant position” of any a premium residential unit in Gurgaon
particular market participant who has no option except to agree to the anti-
happens to come under the gaze of CCI consumer conduct of getting to sign a
either through some information or on printed contract of DLF? May be
its own motion? If that be the case, every elsewhere he may have a choice?
dominant player would be at the mercy However, we are told that it is a nearly
of the CCI. The only thing CCI has to do all India practice. It is not known if the
is to just look at the sectors having some developers claim it to be a mechanism to
“unfair trade practices,” locate the reduce administrative expenses.
dominant player and fasten the liability
“Dominance,” by itself is not bad its
of abuse of dominant position on its
abuse is, is the philosophy of the
shoulders. It has nowhere to go. Is the
competition law which, we are told, is a
dominant player also having the
modern instrument. Do we expect a
automatic responsibility of reforming the
dominant player - or a player which may
sector? Is it the intent of the Act? That,
be one of the few prominent players and
perhaps, was never the philosophy of the
with suitably picking of data or defining
Act. A look at the media reporting the
the relevant market in a particular
order indicates the flavour. Most of the
manner - can be held to be a dominant
reporting in media was on the lines “CCI
player - to be a reformist to purge the
fines DLF Rs. 630 crore for unfair trade
trade of all unfair practices lest it should
practices” little realising that unlike
be accused of abuse of dominant
many other countries, Indian competition
position? If certain practices are
law does not give the authority to CCI to
prevalent in a trade, should the
look into “unfair trade practices”
dominant player follow them to be one
whereas, the same used to be available
amongst the competitors, or to meet the
under MRTP Act, 1969 before it was
competition, or it is supposed to be
repealed.
168 COMPETITION LAW REPORTS (JUL-AUG 2011)
5. Treading the Thin Wedge between “Unfair Trade Practices”
2011] and “Abuse of Dominant Position”
B-245
oblivious to the practices and not follow and the other in Gurgaon. These couples
them despite pressure of the competition? decide either Gurgaon or Noida as a place
Do we expect the dominant player to of residence and one of the two
forget the practices adopted by others, commutes to the place of work. Further
dissect these practices and follow only with the spread of Delhi, by leaps and
that portion of practices which may not bounds, where two places within the
be called unfair? territory of Delhi take more than one to
This brings us to the basic paradox on two hours, it is really difficult to
the provisions relating to abuse of understand how the two places - Noida
dominant position. It is often said against and Gurgaon- can not be part of the same
these provisions that despite the basic market- especially for the upwardly
philosophy of the competition law being mobile aspiring for a property of a value
“to protect the competition and not the between 2 and 2.5 crores. These are the
competitor”, how come a player who has people who, more likely than not, may
become dominant in the competitive own comfortable motor vehicles with
process is being sought to be punished chauffeurs.
for a conduct for which others may go This entire issue of geographical market
scot free. Forcibly putting the yoke of has been dealt by the Commission in Para
being a reformist on the shoulders of a 12.38 of the order. While declaring that
dominant player, will strengthen those the Gurgaon is known to possess certain
who, because of the logic given here, find unique geographical characteristics such
the provision of abuse of dominant as its proximity to Delhi, proximity to
position not in tune with the basic ethos Airports and a distinct brand image as a
of competition laws. destination for upwardly mobile families,
In the United Brands2 case, it was held the CCI, in its order has compared the
that “Chiquita” brand of banana was a places such as Surat in Gujrat but not
“must have” brand for any departmental other places in close vicinity possessing
store. Not having that brand would similar characteristics. Except the last
jeopardise the very existence of the factor, i.e. the alleged distinct brand
department store. In the cases of abuse of image as a destination for upwardly
dominant position, what needs to be mobile families, all other factors apply
seen is why the second party had to enter in equal measure to NOIDA/Greater
into an agreement in the first place. In NOIDA/Faridabad/Ghaziabad. The
United Brands case, it was said that the defence of the party alleged to be in a
other party had no practical choice, if it dominant position may be that the
had to survive in the market. Can the relevant geographic market has not been
same be said of a luxury brand premium adequately dealt with. On the contrary,
residential unit? Are there any use of Surat in Gujrat as a comparison
compulsions of those looking for a and not any place close by may be used
premium residential property not to look as a tool by the enterprise held to be in a
for any other developer in Gurgaon. The dominant position to allege bias in
places in close vicinity could offer a appellate proceedings with forceful
comparative choice such as Noida, effect. The reason for the last factor, i.e. a
Greater Noida or the entire NCR region distinct brand image of Gurgaon is not
as a whole. spelt out in the order. Whether it was as
a result of some survey got done by the
There are a good number of working CCI is not clear. At least the order is silent
couples – one of whom work in Noida
2 27/76 [1978] ECR 207
COMPETITION LAW REPORTS (JUL-AUG 2011) 169
6. B-246 Competition Law Reports [Vol. 2
on it. If it is not supported by any basis If the enterprise in question argues that
whatsoever, we should remember that the product is marketed all over the globe
unless backed by hard facts and and a large chunk of buyers are
reasoning, no order can survive in appeal Non-Resident Indians, it may altogether
only on the basis of some subjective change the contour of the case.
assertions not backed by hard evidence. Now coming to the last part of the order
Further, the treatment given by the contained in Paragraph 12.112 which
Commission in the past to some similar lists the common practices followed by
cases from Gurgaon/Faridabad in developers in this line of activity. The
information relating to other developers order states that a few of the practices
of repute, holding that the information which the DLF has been following and
were either of consumer nature or did are also followed by other builders. This
not raise any competitive concerns will is a very interesting argument. If this is
be hard put to justify - decisions being true, the DLF can jolly well argue that
on its own website (Girish Batra v. BPTP the CCI has essentially tried to punish it
Ltd and Others, Case No. 42/2010 and for Unfair Trade Practices over which it
many others). has no jurisdiction. It may be really
At this point, it may be instructive to relevant to recall that the MRTPC
remember the judgment of European Act, 1969 was repealed with effect from
Court of Justice in the Continental Can 1st September, 2009. Section 66 of the Act
case. In that case, the ECJ found fault with deals with the work-in-progress before
the definition of relevant market adopted MRTPC under the MRTP Act as on the
by the European Commission in date when the MRTPAct was repealed.
Continental Can3 case. The entire work-in-progress has been
distributed to various agencies including
In the Continental Can case, the European COMPAT, CCI, DG in the CCI or The
Commission had held that the Continental National Commission constituted under
Can and its subsidiary SLW had a the Consumer Protection Act, 1986, etc.
dominant position in three different The part relating to unfair trade practices
product markets - cans for meat, cans for which was till then being dealt under
fish and metal tops - without giving a MRTP Act, 1969, has not yet found a
satisfactory explanation of why these father. Not that the Government is not
markets were separate from one another aware of this missing link, it has been
or from the market for “cans” and repeatedly discussed at various levels
“containers” generally. with an aim to find a solution. As on date,
Similarly, in the case of United Brands the issue remains unresolved.
case, the ECJ stated that the Consequently, unlike at the time before
opportunities for the competition under the MRTP Act was repealed, there are no
Article 82 must be considered. It stated: legal recourses to the area known as
with reference to a clearly defined “unfair trade practices” being dealt by
geographic area in which (the MRTPC earlier. Unlike many other
product) is marketed and where the countries, the law as envisioned under
conditions are sufficiently the Act, in India, does not include unfair
homogenous to the economic power trade practices within its ambit. The word
of the undertaking concerned to be “unfair” used in Section 4(2)(a) is in a
able to be evaluated… different context.
3 JO [1972] L7/25, (1972) CMLR D11
170 COMPETITION LAW REPORTS (JUL-AUG 2011)