this article contains a view of merger control in India by way of analysing the clearances given by the competition agency of India and the time taken in different stages. It looks at all the competition review done by CC I and finds out the average clearance time. This is a two-part article. Part one deals with the performance and the outcome in terms of the quickness of clearance. Second part deals with the lessons learnt after the experience of merger review in India for the first time.
Combination Review in India: Lessons So Far - Part II - KK SharmaKK SHARMA LAW OFFICES
ย
In the immediately preceding issue, the performance of the CCI in the task of
regulations of combinations, as compared to international standards, was discussed
and found to be really impressive for any new competition agency. However, this
experience in regulation of combinations has thrown up interesting lessons in
merger control. In this concluding part, the author, who laid down the basic
analytical and procedural framework for combination review, as the first Head of
Merger Control CCI, in India, takes a look at the lessons from the journey in
merger control so far in India. The comparisons with other jurisdictions throw
up extremely interesting results as seen here in this concluding part.
Reality Bites: A Review of Penal Provisions under the Competition LawKK SHARMA LAW OFFICES
ย
Despite being a new law in its own right, the Competition Act, 2002 (the Act)
is still perceived as a successor to the Monopolies and Restrictive practices Act,
1969 (MRTPC Act). There is a need for a better appreciation that, unlike MRTPC,
the CCI has adequate powers to deal with the delinquent enterprises, to ensure
that it is in a position to effectively fulfill the mandate given to it. Through a
discussion of the penal provisions of the Act, the author, who played a pioneering
role in establishing the CCI, sets the record straight about the adequate penal
powers given to the CCI to be in a position to be an effective regulator by making
a comparison between the earlier MRTPC regime and, after its repeal, the present
competition regime under CCI. On comparison, the author feels that the CCI
has adequate powers to deal with the responsibility entrusted to it.
Automobile Manufacturers Fined for Restricting Access to Replacement Parts - ...KK SHARMA LAW OFFICES
ย
Competition Law and Intellectual Property Rights (IPRs), since ages, have had a difficult marriage. As is popularly believed that a happy, successful and enduring marriage, between spouses, is good for the growth, stability and future development of the children, nearly in a similar way, it is necessary for this marriage between competition law and IPRs for the overall and long-term benefit of the society. IPRs are statutorily given monopolies and these are given for good reasons to induce inventions and other creative outcomes from some gifted members of the society to be revealed to the society at large so that , in exchange for granting of short term monopoly to the contributor of the IPRs, the society is revealed the new inventions and creations which become publicly available after the lapse of statutorily granted monopoly time period. During the period during the grant of these statutorily allowed monopolies, the holder of IPRs is permitted reasonable protection under competition law as well. The order in automobiles spare partsโ case passed by CCI on the question of reasonableness is an important landmark in this area of jurisprudence of IPRs and competition law. The author, who as the first Director General of functional Competition Commission of India, established the competition law investigation framework in India, looks back at this order of CCI in this piece.
Combination Review in India: A Mid-year Review (Part I) - K.K. SharmaKK SHARMA LAW OFFICES
ย
In this two-part article, the first part of which appears here, the author, the chief
architect behind the review format of Merger Review in India, takes a look at the
performance of the Competition Commission of India (CCI) in handling the
regulations of combinations (merger review) in India and how does it compare
with international standards. The stark contrast between the anxious reactions
before the regulations of combinations came into force and the deafening silence,
even after 19 approvals have been given by the CCI, has also been briefly touched
upon. The next part, to follow, shall deal with the lessons arising from the
journey of merger control in India so far.
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.
โ India recently completed a little over two years of regulation of combinations.
In contrast to the exaggerated fears associated with the likely bringing into force
of the provisions relating to regulation of combinations before the provisions
were actually notified w.e.f. June 1, 2011, the two years have passed rather
peacefully. The author , Mr. K K Sharma, former Head of Merger Control and
Director General, CCI, who laid the foundations of regulation of combinations
in India by way of devising the Merger Review Format as well as making it
successfully functional , reviews the performance of Competition Commission of
India in regulation of combinations and discusses the associated issues. He also
throws light on merger filing Form 1 which is almost the simplest in the world
for a jurisdiction having almost the highest thresholds in the world. He places on
record the deft handling of the regulation of combinations by CCI.โ
This document discusses some areas for potential improvement in the functioning of the Competition Commission of India (CCI). It notes that over 7 years, the CCI has not grown as effectively as expected given the size of India's economy and prevalence of anticompetitive practices. The document discusses three key areas - institutionalizing institutional memory to avoid repeating work, improving how information from informants is dealt with to protect identities and encourage more cases, and making greater use of sua sponte investigations instead of just reacting to cases. Maintaining proper records and knowledge management could help the CCI function more effectively.
Combination Review in India: Lessons So Far - Part II - KK SharmaKK SHARMA LAW OFFICES
ย
In the immediately preceding issue, the performance of the CCI in the task of
regulations of combinations, as compared to international standards, was discussed
and found to be really impressive for any new competition agency. However, this
experience in regulation of combinations has thrown up interesting lessons in
merger control. In this concluding part, the author, who laid down the basic
analytical and procedural framework for combination review, as the first Head of
Merger Control CCI, in India, takes a look at the lessons from the journey in
merger control so far in India. The comparisons with other jurisdictions throw
up extremely interesting results as seen here in this concluding part.
Reality Bites: A Review of Penal Provisions under the Competition LawKK SHARMA LAW OFFICES
ย
Despite being a new law in its own right, the Competition Act, 2002 (the Act)
is still perceived as a successor to the Monopolies and Restrictive practices Act,
1969 (MRTPC Act). There is a need for a better appreciation that, unlike MRTPC,
the CCI has adequate powers to deal with the delinquent enterprises, to ensure
that it is in a position to effectively fulfill the mandate given to it. Through a
discussion of the penal provisions of the Act, the author, who played a pioneering
role in establishing the CCI, sets the record straight about the adequate penal
powers given to the CCI to be in a position to be an effective regulator by making
a comparison between the earlier MRTPC regime and, after its repeal, the present
competition regime under CCI. On comparison, the author feels that the CCI
has adequate powers to deal with the responsibility entrusted to it.
Automobile Manufacturers Fined for Restricting Access to Replacement Parts - ...KK SHARMA LAW OFFICES
ย
Competition Law and Intellectual Property Rights (IPRs), since ages, have had a difficult marriage. As is popularly believed that a happy, successful and enduring marriage, between spouses, is good for the growth, stability and future development of the children, nearly in a similar way, it is necessary for this marriage between competition law and IPRs for the overall and long-term benefit of the society. IPRs are statutorily given monopolies and these are given for good reasons to induce inventions and other creative outcomes from some gifted members of the society to be revealed to the society at large so that , in exchange for granting of short term monopoly to the contributor of the IPRs, the society is revealed the new inventions and creations which become publicly available after the lapse of statutorily granted monopoly time period. During the period during the grant of these statutorily allowed monopolies, the holder of IPRs is permitted reasonable protection under competition law as well. The order in automobiles spare partsโ case passed by CCI on the question of reasonableness is an important landmark in this area of jurisprudence of IPRs and competition law. The author, who as the first Director General of functional Competition Commission of India, established the competition law investigation framework in India, looks back at this order of CCI in this piece.
Combination Review in India: A Mid-year Review (Part I) - K.K. SharmaKK SHARMA LAW OFFICES
ย
In this two-part article, the first part of which appears here, the author, the chief
architect behind the review format of Merger Review in India, takes a look at the
performance of the Competition Commission of India (CCI) in handling the
regulations of combinations (merger review) in India and how does it compare
with international standards. The stark contrast between the anxious reactions
before the regulations of combinations came into force and the deafening silence,
even after 19 approvals have been given by the CCI, has also been briefly touched
upon. The next part, to follow, shall deal with the lessons arising from the
journey of merger control in India so far.
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.
โ India recently completed a little over two years of regulation of combinations.
In contrast to the exaggerated fears associated with the likely bringing into force
of the provisions relating to regulation of combinations before the provisions
were actually notified w.e.f. June 1, 2011, the two years have passed rather
peacefully. The author , Mr. K K Sharma, former Head of Merger Control and
Director General, CCI, who laid the foundations of regulation of combinations
in India by way of devising the Merger Review Format as well as making it
successfully functional , reviews the performance of Competition Commission of
India in regulation of combinations and discusses the associated issues. He also
throws light on merger filing Form 1 which is almost the simplest in the world
for a jurisdiction having almost the highest thresholds in the world. He places on
record the deft handling of the regulation of combinations by CCI.โ
This document discusses some areas for potential improvement in the functioning of the Competition Commission of India (CCI). It notes that over 7 years, the CCI has not grown as effectively as expected given the size of India's economy and prevalence of anticompetitive practices. The document discusses three key areas - institutionalizing institutional memory to avoid repeating work, improving how information from informants is dealt with to protect identities and encourage more cases, and making greater use of sua sponte investigations instead of just reacting to cases. Maintaining proper records and knowledge management could help the CCI function more effectively.
A detailed perspective of the background, the present functioning and the future possibilities of the merger control regime in India as it unfolds with the passage of time by the architect of merger control in India.
A detailed perspective of the background, the present functioning and the future possibilities of the merger control regime in India as it unfolds with the passage of time by the architect of merger control in India.
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 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.
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.
A 360 Degree Review of Penal Provisionsโ Application under Competition Law ...KK SHARMA LAW OFFICES
ย
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 oneโs 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.
Presentation on The competition act(2002)satya pal
ย
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.
India: Prohibition of Anti-Competitive Agreements and Abuse of Dominant PositionKK SHARMA LAW OFFICES
ย
โUnlike 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.โ
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 โ whether above or below thresholds.
The document provides an introduction to the Competition Act of 2002 in India. It summarizes that the Act was introduced to replace the Monopolies and Restrictive Trade Practices Act of 1969 by establishing a new competition regulatory authority. The Act aims to prevent anti-competitive practices like anti-competitive agreements and abuse of dominant positions while regulating combinations/mergers. It also seeks to encourage competition advocacy to promote a culture of competition in India's economic policies and laws.
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.
Ex-Parte Prima Facie order by the Competition Commission of India โ A CritiqueKK SHARMA LAW OFFICES
ย
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.
K.K. Modi vs. K.N.Modi & ors. (1998) 3 scc 573nishidh41
ย
Arbitration - jurisdiction - intention of parties not to have any judicial determination on basis of evidence led before Chairman - Chairman not required to base decision only on materials placed before him by parties and their submissions - free to take help of other experts - finality of decision indicative of being an expert's decision though not conclusive - decision of Chairman not an arbitration award - held, proceedings before Chairman not arbitration proceedings and nor his decision and award.
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.
A comparative study of the provisions of the Indian Competition Act, US Anti ...Pritam Pandey
ย
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.
Article on teleInter- Regulatory Space : A case for healthy cooperation --- K...KK SHARMA LAW OFFICES
ย
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.
The document discusses the constitutional basis and evolution of competition law in India. It notes that Articles 38 and 39 of the Indian Constitution mandate promoting social welfare and minimizing economic inequalities, triggering the first competition law in 1969. A committee in 1999 recommended a modern competition law aligned with international standards. This led to the Competition Act of 2002, which aims to promote fair competition while allowing for monopolies in some industries. It prohibits anti-competitive agreements and abuse of dominant positions while regulating mergers and acquisitions. The Competition Commission of India was established to enforce the Act and advocate for pro-competitive policies.
This document discusses collective bargaining, including its definition, evolution, types, process, agreements, levels, conditions for success, trends, and perceptions. Collective bargaining is a negotiation process between labor unions and employers to determine wages, hours, rules and working conditions. It aims to find common ground to reconcile conflicting interests through proposals and counterproposals. Key factors for successful collective bargaining include trade union recognition, good faith efforts, and adherence to reached agreements.
The document provides an overview of the role and functions of the Competition Commission of India (CCI). It summarizes that the CCI is responsible for preventing anti-competitive practices, promoting competition, protecting consumer interests, and ensuring freedom of trade. The CCI conducts investigations into anti-competitive agreements and abuse of dominant position cases. It also regulates combinations. In addition, the CCI engages in advocacy efforts like making recommendations to the government, organizing workshops, publishing literature, and conducting studies to promote competition in India.
The document provides an overview of the Competition Act of 2002 in India. It discusses the historical context leading to the enactment of the earlier Monopolies and Restrictive Trade Practices Act of 1969 and the transition to the Competition Act of 2002. The summary is as follows:
1. The MRTP Act of 1969 was enacted to curb monopolistic practices but became outdated with economic reforms in 1991 leading to the need for a new competition law.
2. The Competition Act of 2002 was enacted to promote competition and protect consumer interests in line with India's more liberalized economy. It established the Competition Commission of India to enforce the act.
3. The act aims to prevent anti-competitive practices like cartels
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.
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A detailed perspective of the background, the present functioning and the future possibilities of the merger control regime in India as it unfolds with the passage of time by the architect of merger control in India.
A detailed perspective of the background, the present functioning and the future possibilities of the merger control regime in India as it unfolds with the passage of time by the architect of merger control in India.
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 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.
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.
A 360 Degree Review of Penal Provisionsโ Application under Competition Law ...KK SHARMA LAW OFFICES
ย
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 oneโs 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.
Presentation on The competition act(2002)satya pal
ย
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.
India: Prohibition of Anti-Competitive Agreements and Abuse of Dominant PositionKK SHARMA LAW OFFICES
ย
โUnlike 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.โ
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 โ whether above or below thresholds.
The document provides an introduction to the Competition Act of 2002 in India. It summarizes that the Act was introduced to replace the Monopolies and Restrictive Trade Practices Act of 1969 by establishing a new competition regulatory authority. The Act aims to prevent anti-competitive practices like anti-competitive agreements and abuse of dominant positions while regulating combinations/mergers. It also seeks to encourage competition advocacy to promote a culture of competition in India's economic policies and laws.
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.
Ex-Parte Prima Facie order by the Competition Commission of India โ A CritiqueKK SHARMA LAW OFFICES
ย
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.
K.K. Modi vs. K.N.Modi & ors. (1998) 3 scc 573nishidh41
ย
Arbitration - jurisdiction - intention of parties not to have any judicial determination on basis of evidence led before Chairman - Chairman not required to base decision only on materials placed before him by parties and their submissions - free to take help of other experts - finality of decision indicative of being an expert's decision though not conclusive - decision of Chairman not an arbitration award - held, proceedings before Chairman not arbitration proceedings and nor his decision and award.
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.
A comparative study of the provisions of the Indian Competition Act, US Anti ...Pritam Pandey
ย
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.
Article on teleInter- Regulatory Space : A case for healthy cooperation --- K...KK SHARMA LAW OFFICES
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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.
The document discusses the constitutional basis and evolution of competition law in India. It notes that Articles 38 and 39 of the Indian Constitution mandate promoting social welfare and minimizing economic inequalities, triggering the first competition law in 1969. A committee in 1999 recommended a modern competition law aligned with international standards. This led to the Competition Act of 2002, which aims to promote fair competition while allowing for monopolies in some industries. It prohibits anti-competitive agreements and abuse of dominant positions while regulating mergers and acquisitions. The Competition Commission of India was established to enforce the Act and advocate for pro-competitive policies.
This document discusses collective bargaining, including its definition, evolution, types, process, agreements, levels, conditions for success, trends, and perceptions. Collective bargaining is a negotiation process between labor unions and employers to determine wages, hours, rules and working conditions. It aims to find common ground to reconcile conflicting interests through proposals and counterproposals. Key factors for successful collective bargaining include trade union recognition, good faith efforts, and adherence to reached agreements.
The document provides an overview of the role and functions of the Competition Commission of India (CCI). It summarizes that the CCI is responsible for preventing anti-competitive practices, promoting competition, protecting consumer interests, and ensuring freedom of trade. The CCI conducts investigations into anti-competitive agreements and abuse of dominant position cases. It also regulates combinations. In addition, the CCI engages in advocacy efforts like making recommendations to the government, organizing workshops, publishing literature, and conducting studies to promote competition in India.
The document provides an overview of the Competition Act of 2002 in India. It discusses the historical context leading to the enactment of the earlier Monopolies and Restrictive Trade Practices Act of 1969 and the transition to the Competition Act of 2002. The summary is as follows:
1. The MRTP Act of 1969 was enacted to curb monopolistic practices but became outdated with economic reforms in 1991 leading to the need for a new competition law.
2. The Competition Act of 2002 was enacted to promote competition and protect consumer interests in line with India's more liberalized economy. It established the Competition Commission of India to enforce the act.
3. The act aims to prevent anti-competitive practices like cartels
Similar to Combination Review in India_A mid year review_Part 1_Section B (20)
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).
This document summarizes a recent ruling by the German Federal Supreme Court that clarified two issues regarding private antitrust enforcement in Germany. The ruling confirmed that indirect purchasers have standing to bring damages claims. It also allowed defendants to use a "pass-on defense" to argue that the claimant passed on some or all of the damages to subsequent purchasers in the supply chain. However, the document notes that the ruling raised new questions about burden of proof standards regarding the pass-on defense that will need to be addressed in future cases.
This article deals with an in-depth analysis of the doctrine of extraterritoriality contained in the competition law of India which gives CC I jurisdiction require into anti-competitive agreements ,abuses of dominant position and combinations if such agreement or dominant position or combinations have or are likely to have an appreciable adverse effect on competition in the relevant market in India.
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A wound is a break in the integrity of the skin or tissues, which may be associated with disruption of the structure and function.
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Healing can occur in two ways: Regeneration and Repair
There are 4 phases of wound healing: hemostasis, inflammation, proliferation, and remodeling. This document also describes the mechanism of wound healing. Factors that affect healing include infection, uncontrolled diabetes, poor nutrition, age, anemia, the presence of foreign bodies, etc.
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๐๐ข๐ฌ๐๐ฎ๐ฌ๐ฌ ๐ญ๐ก๐ ๐๐๐ ๐๐ฎ๐ซ๐ซ๐ข๐๐ฎ๐ฅ๐ฎ๐ฆ ๐ข๐ง ๐ญ๐ก๐ ๐๐ก๐ข๐ฅ๐ข๐ฉ๐ฉ๐ข๐ง๐๐ฌ:
- Understand the goals and objectives of the Edukasyong Pantahanan at Pangkabuhayan (EPP) curriculum, recognizing its importance in fostering practical life skills and values among students. Students will also be able to identify the key components and subjects covered, such as agriculture, home economics, industrial arts, and information and communication technology.
๐๐ฑ๐ฉ๐ฅ๐๐ข๐ง ๐ญ๐ก๐ ๐๐๐ญ๐ฎ๐ซ๐ ๐๐ง๐ ๐๐๐จ๐ฉ๐ ๐จ๐ ๐๐ง ๐๐ง๐ญ๐ซ๐๐ฉ๐ซ๐๐ง๐๐ฎ๐ซ:
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Combination Review in India_A mid year review_Part 1_Section B
1. 2012] B-31
Section B
Articles
Combination Review in India: A Mid-year Review (Part I)
K.K. Sharma*
In this two-part article, the first part of which appears here, the author, the chief
architect behind the review format of Merger Review in India, takes a look at the
performance of the Competition Commission of India (CCI) in handling the
regulations of combinations (merger review) in India and how does it compare
with international standards. The stark contrast between the anxious reactions
before the regulations of combinations came into force and the deafening silence,
even after 19 approvals have been given by the CCI, has also been briefly touched
upon. The next part, to follow, shall deal with the lessons arising from the
journey of merger control in India so far.
The thought for this write up has been with neutral viewpoint taken. I wanted to keep
me for quite some time. To succumb or not away from this matter for the fear of being
to succumb to the temptation of sharing accused of blowing my own trumpet. This
my thoughts was an extremely difficult hesitation emanated, essentially, from the
dilemma. โDamn if you do and damn if fact that I was entrusted by the Competition
you donโt.โ Not agreeing to the call from Commission of India (CCI) with the job of
within would have meant an extremely bringing the procedural and analytical
important milestone being missed out format for combination review (also more
without as much as a whimper despite popularly known as โmerger reviewโ) into
having such a stormy legacy. At the same existence in India. The difficulty in this
time giving in to my internal desire was assignment was that no such template
also a really tough call-primarily because existed which could suit the requirements
of the apparent conflict of interest or of the factors of determination given in
something which can be alleged to be a Section 20(4) of the Competition Act,
conflict of interest irrespective of the most 2002(the Act). No doubt, the Act has
* Commissioner of Income Tax, Govt of India, Kochi, India. He was Director General & Head
of Merger Control, in CCI till recently. The views in this article are personal. He can be
reached at kksharmairs@gmail.com
COMPETITION LAW REPORTS โข FEBRUARY, 2012 93
2. B-32 Competition Law Reports [Vol. 1
attempted to collect nearly all the factors enacted. This period begins with the
either given in the laws of developed resolve of the nation being reflected in the
jurisdictions or the ones which came to declaration, in the parliament, by the then
be recognised as a result of the Finance Minister that the country needed
development of the competition law a new modern competition law and any
jurisprudence in the jurisdictions which further patch work on the then existing
have been practicing this craft for a longer Monopolistic and Restrictive Trade
time in comparison. Even those Practices Act, 1969 (MRTPCA), as had
jurisdictions from where some of these been done in the past, a number of times,
factors have come from either did not have would not suffice. After going through
a documented analytical framework (as various motions, finally, on the
it had evolved over a period of time recommendation of the Raghvan
without a due documentation of this Committee report, the Act was enacted on
evolution) or did not want to share it in 13th January, 2003. The second period
the name of confidentiality. For these begins from 13 th January, 2003 till
reasons, starting from the first principles, 20th May, 2009. In this period, for various
a procedural and analytical framework reasons relating to the background of
rooted in the ethos and principles litigation, the Act had to be amended in
embodied in the Act was developed. Sept 2007 so as to fulfil the assurances
Naturally, any applause, from me, may given to Honโble Supreme Court by the
have the potential to be viewed as suspect, Government. This ensured that the matter
as self-praise, despite the fact that I am no was not litigated any further. Thereafter,
longer with the CCI. till 28th February, 2009, the CCI functioned
as a one Member body till July, 2008 (not
However, completion of a half-year term really a Commission in true legal sense
with quiet but resounding success is too because of the stipulation, in section 8 of
big a landmark to be missed. If nobody else, the Act that the Commission shall consist
competition law history of the country will of one Chairperson and at least two
never forgive someone who, despite having Members appointed under the Act). From
some germination of ideas, let this historic July, 2008 till 28th February, 2009, the CCI
moment pass without any record. It is often only consisted of staff and no Member /
said that 100 days is a big time in politics. Chairperson was in office. On
May be, borrowing the same analogy, we 28th February, 2009, one Chairperson and
can say that 180 days is a long enough one Member entered office and, soon
period in the history of a competition thereafter, on 1st March, 2009, the second
agency to have a look at the performance, Member entered the office and the CCI was
in any chosen area of its functioning, as it duly constituted for the first time. The duly
gives an idea of the trends so badly needed constituted CCI had a look at the
to assess its effectiveness as well as preparatory material prepared by the
proclivities, if any, for helping the attorneys earlier formations and, after due
as well as business to navigate the deliberations, approved the
combination review tunnel with grace and implementing regulations for various
minimum regulatory burden. After waiting aspects of the functioning of the CCI.
for nearly a month, despite tremendous Simultaneously, the Government also
resistance from within, I have gathered brought enforcement provisions relating
enough courage to put the record straight to the anti-competitive agreements /
and give devil its due. cartels and abuse of dominant position
In the history of competition law in India, (Sections 3 and 4 of the Act) with effect
there are four distinct periods. The first from 20th May, 2009. That is the beginning
period began from 26th February, 1999 till of the competition law enforcement in
13th January, 2003 the day the Act was Indiaโalbeit partially. The third period
94 COMPETITION LAW REPORTS โข FEBRUARY, 2012
3. 2012] Combination Review in India: A Mid-year Review (Part I) B-33
began from 20th May, 2009. In this period the lull after the storm. For one who has
the duly constituted CCI started enforcing been at the near centre of this storm before
the provisions relating to anticompetitive the lull, nothing can be more surprising
agreements/cartels and abuse of but still satisfying. None of those who
dominant position of the Act. were a part of the chorus, or anyone else
In this third period, the efforts to bring for that matter, is admitting that those
into force the provisions relating to fears and misgivings were wrong, that
regulations of combinations by the CCI the CCI is doing its job very diligently or
and the Government on the one hand and whatever. In comparison, the
equally strong efforts/manoeuvres to stall international press-legal press or
them by a wide spectrum of business and otherwise has been highly appreciative
other interest groups, represented through of the spectacular performance of the CCI
various formations, continued till as late in this area of activity.
as 4th March, 2011 when the notification If we recall, the concerns of the business,
bringing the provisions relating to voiced on different platforms, at various
regulation of combinations into force, with times were, broadly, as under:
effect from 1st June, 2011, was issued. Not โข Mandatory pre-merger notification
that the opposition to the provisions is burdensome. Voluntary regime
relating to merger control was particularly preferred by industry
subdued even earlier but, after the part โข Asset/turnover thresholds are too
enforcement of the competition law low
provisions, it certainly became much more
โข The time period for review,210
vociferous. It was nearly at its peak in this
days, is too long
third period ending on 1st June, 2011. This
was a period of mad cacophony. โข No minimum thresholds for
Everyone, who was someone, or who acquisition of shares/assets.
could make him / her heard as someone Burden on big enterprises.
before those who matter, questioned the โข Concept of โgroupโ consisting of
credibility of the CCI on whichever count enterprises puts additional burden
he or she considered feasible. The alleged on big enterprises
reasons, of lack of faith in CCI to handle โข Likely adverse affect on the growth
review of combinations, ranged from lack of a developing economy by
of capacity, resources of material kind, regulating combinations
โsarkariโ(read โbureaucraticโ) attitude, โข Separate higher thresholds for
the unduly long period of clearance telecom, infrastructure, energy,
provided under the law, high fees and banking and insurance sectors
what have you. Actually, some efforts to โข Regulation of combinations be
get it postponed, preferably indefinitely, taken up by CCI only after gaining
after 4 th March, 2011 and before experience of several years
1st June, 2011 also continued in the name
โข Regulating acquisitions would
of lack of preparedness as the finalisation
deny Indian business the
of the implementing regulations by the
opportunity to take-over and
CCI took some time not entirely because
reviving failing enterprises
of the fault of CCI. The fourth period of
full enforcement of competition law in Indeed a look at the track record of CCI in
India began from 1st June, 2011. treading this forbidden territory has been
such that none of the fears has come true.
Surprisingly, in contrast, now after a
The following table summarises the salient
passage of more than seven months there
aspects of the approvals of combinations
is an unusual lull. Interestingly, it is not
by CCI as of the time of writing:
the proverbial lull before the storm but
COMPETITION LAW REPORTS โข FEBRUARY, 2012 95
4. 96
S. Combination Notice Under Intra Filed Decision Date of Total Time Net
B-34
No. Registration Description Section Group or on Order Days Out Days
No. Otherwise (Days)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
19 C-2012/01/25 Notice for merger of NRL and RITL 5(c) Intra 24/01/2012 Approved 2/02/2012 9 โ 9
Group
18 C-2012/01/18 Notice for merger of TACOCL 5(c) Intra 2/1/2012 Approved 2/2/2012 31 21 10
and TACO. Group
17 C-2011/12/17 Notice for acquisition by Isuzu 5(a) 22/12/2011 Approved 2/2/2012 42 24 18
Motors Ltd, SML Isuzu Ltd and
Sumitomo Corporation.
16 C-2012/01/21 Notice for merger of GSSPL 5(c) Intra 13/01/2012 Approved 24/01/2012 11 โ 11
and PIPL. Group
15 C-2012/01/20 Notice for merger of SHMPL 5(c) Intra 10/1/2012 Approved 17/01/2012 7 โ 7
and STFC. Group
14 C-2011/12/16 Notice for merger of EAPL 5(c) Intra 16/12/2011 Approved 17/01/2012 32 10 22
Competition Law Reports
and BBTCL. Group
13 C-2011/12/13 Notice for merger of IVRCL Ltd. 5(c) Intra 12/12/2011 Approved 17/01/2012 36 23 13
and IVRCL Assets & Holdings Ltd. Group
12 C-2011/12/12 Notice for merger filed by TCL 5(c) Intra 9/12/2012 Approved 28/12/2011 19 โ 19
and Wyoming I Group
11 C-2011/12/15 Notice for Acquisition filed 5(a) 12/12/2011 Approved 28/12/2011 16 โ 16
by SCB India
10 C-2011/12/11 Notice for Merger filed by 5(c) Intra 1/12/2011 Approved 28/12/2011 27 5 21
AN India Ltd., AN Chemicals Ltd., Group
COMPETITION LAW REPORTS โข FEBRUARY, 2012
[Vol. 1
5. (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
2012]
9 C-2011/10/07 Notice for Merger filed by Nippon 5(c) 14/10/2011 Approved 27/12/2011 74 64 10
Steel Corporation and Sumitomo
Metal Industries Ltd.
8 C-2011/11/10 Notice for Acquisition filed 5(a) 25/11/2011 Approved 13/12/2011 18 8 10
by KKR FII
7 C-2011/11/09 Notice for Merger filed by 5(c) Intra 21/11/2011 Approved 13/12/2011 22 10 12
SL, SVAI and Morgan Group
6 C-2011/10/05 Notice for Acquisition filed by 5(a) 5/10/2011 Approved 4/11/2011 30 7 23
NHK Automotive Components
India Private Limited and
NHK Spring Co., Limited
5 C-2011/10/06 Notice for Merger filed by 5(c) Intra 12/10/2011 Approved 19/10/2011 7 โ 7
AHIL and APIL Group
4 C-2011/09/04 Notice for Acquisition filed by 5(a) 7/9/2011 Approved 30/09/2011 15 8 15
COMPETITION LAW REPORTS โข FEBRUARY, 2012
AICA Kogyo Company Limited
and Aica Laminates Indian
Private Limited
3 C-2011/08/03 Notice for Acquisition filed by 5(a) 24/08/2011 Approved 15/09/2011 22 7 15
G&K Baby Care Private Limited
2 C-2011/08/02 Notice for Acquisition filed by 5(a) 1/8/2011 Approved 25/08/2011 24 6 18
Combination Review in India: A Mid-year Review (Part I)
The Walt Disney Company
(Southeast Asia) Pte. Limited
1 C-2011/07/01 Notice for Acquisition filed 5(a) 7/7/2011 Approved 26/07/2011 21 4 17
by RIL and RIIL
97
B-35
6. B-36 Competition Law Reports [Vol. 1
The above table analyses the On an average, in the cases of regulations
combinations handled by the CCI as of of combinations approved by the CCI so
the time of this writing. In total, 19 far, the time to approve a combination
combinations have been approved by under Section 31 of the Act has been a
CCI, spread over a period of a little over mere 14 (or 14.36 to be exact) calendar
seven months from 1 st June, 2011 to days. This would translate to a little less
2nd February, 2012. In the combinations than 10 working days if we keep even
handled so far by the CCI out of a total the list of scheduled holidays in India in
19 matters, 10 cases have involved mind leaving aside the frequent
intra-group mergers/amalgamations. disruptions of work on many other
In all these cases, the mergers/ counts. This is indeed a rare feat for a
amalgamation did not change the control new competition agency.
dynamics of the enterprises on a macro For a comparison of the numbers, in
level except the contours of control nearly the same period, from June 2011
undergoing some change. Had the to January, 2012, the EU DG Competition
notification issued by the Government handled 225 cases. Let us not forget that,
on 4th Mach, 2011,1 as amended later on in addition to EU DG Comp, the national
27th May, 2011, 2 included the mergers competition authorities, within the
and amalgamations along with the European Union, also clear mergers.
acquisitions, perhaps, many of these Comparatively, a similar economy, South
notifications would not have come before Africa Competition Commission passed
the CCI. judgement in 41 cases in the month of
Nine cases of notifications, other than January, 2012 alone. In the United States
the intra-group combinations, for an of America, being a different procedure
economy of the size of India are not too as no approval order is required to be
many notwithstanding the not too bright passed, the comparison would not be
patch which the global economy, in appropriate. Although the figures of
general, is going through. All the merger filings in USA for the same period
combinations, including the 10 cases of are much higher bur these are not being
intra-group combinations have been discussed for lack of comparative merit.
approved by the CCI. This is not to say These numbers do not indicate that the
that if the situation so requires the CCI capacity of CCI to handle work is less
would shy away from asking the parties but the fact that, through various means,
to the combinations for modifications the work load of the CCI under this head
under Section 31(3) of the Act or even been reduced to a bare minimum because
block the combinations under of the forceful effects of the noise in the
Section 31(2) of the Act on a case to case third phase of evolution of competition
basis as and when the situation so law in India as discussed in the
demands. Nonetheless, the track record, preceding paragraphs.
so far, brings one inference in bold relief The performance of the CCI, so far, shows
and that is that the CCI is not trigger that neither the requirement of
happy as would have been the normal mandatory pre-merger notification has
impression if one were to believe the fears dissuaded any business from going
expressed before the provisions relating ahead with any transaction nor has any
to merger control became a reality in transaction been killed as a result of the
India. feared immature, inept and
1 Notification SO 482(E) (No. 412) dated 4th March, 2011
2 Notification SO 1218(E) (Corrigendum No. 1017)
98 COMPETITION LAW REPORTS โข FEBRUARY, 2012
7. 2012] Combination Review in India: A Mid-year Review (Part I) B-37
unprofessional handling of the even before the sector regulators have
notification by CCI. So the fears about cleared some of the transactions where it
the lack of professional capacity of CCI was needed.
to handle complex merger transactions
remain what they were: fearsโ that too
imaginary. A minimum threshold for the Nobody is having any
acquisition size has been provided by the grievances from the
Government through executive
notifications.3 The group linkage has also functioning of CCI in this
been relaxed a little more by the area of functioning
Government through notification.4 The
sectors covered so far include insurance,
media, telecom, infrastructure etc. with This would indicate to us the hollowness
the same thresholds without any of the noises made or the fears expressed
excessive regulatory burden on any before the merger review became reality
sector. Bringing into force of the in India. The comparison also shows that
regulations of combinations with effect the bogey of the thresholds for
from 1st June, 2011 has not dampened the regulations of combinations being too
spirit of Indian business either to make low was not really based on reality. It
acquisitions abroad or take over less was a claim made with vigorous
performing/ailing enterprises within its forcefulness and, unfortunately, had
fold if that makes commercial sense. adequate impact. The fear that the whole
Nobody, so far, has experienced the much economy would be adversely impacted
maligned 210 days taken in approval by because of the negative impact of merger
CCI whereas this is not a very unusual control on the economy is nowhere to be
time, sometimes, taken by enterprises in seen. The miniscule transactions being
the mergers/amalgamations or captured under filing requirement are too
acquisitions under the hitherto existing small to make any difference to the
regulatory mechanism under the economy even if the handling of the
Companies Act, 1956 and SEBI Act, regulations of combinations by CCI were
1992. 5 not to be as professional and prompt as
Nobody is having any grievances from it, in reality, is.
the functioning of CCI in this area of Thus, the implementation of the law and
functioning. The mandatory pre-merger the performance of the regulator have not
filing requirement has been truly created the kind of mayhem as would
accepted by the industry as the have seemed a distinct possibility if the
mandatory way of doing transactions fears about dangers of the provisions
above the thresholds given under the relating to the regulations of the
Act. This goes to the credit of the business combinations being brought into force
that except for the noises prior to the were to be believed. However, there are
regulations coming into force, it has been lessons to be learned in the journey of
accepted as a way of doing business regulation of combination so far. These
without much ado. The CCI has been will be discussed in the (Part II) in the
prompt enough to approve transactions following issue.
Copyright ยฉ K.K. Sharma
3 Notification S.O. No 482(E) dated 4th March, 2011 read with S.O.1218(E), dated 27th May, 2011
4 Notification S.O. No 481(E) dated 4 th March, 2011
5 The Securities and Exchange Board of India Act, 1992, No 15 of 1992
COMPETITION LAW REPORTS โข FEBRUARY, 2012 99