Competition law in India : a practical guide / Abir Roy.
2016
KNS977 .R693 2016 (Map It)
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Author
Title
Competition law in India : a practical guide / Abir Roy.
Published
Alphen aan den Rijn, the Netherlands : Kluwer Law International B. V., [2016]
Call Number
KNS977 .R693 2016
Former Call Number
Ind 650 R8122 2016
ISBN
9789041161390
9041161392
9041161392
Description
xv, 322 pages : illustrations ; 25 cm
System Control No.
(OCoLC)945088566
Summary
Competition law in India: A practical guide' provides comprehensive, practical guidance by outlining the highly distinctive manner in which competition law is interpreted in the major global market of India. Although relatively young in terms of its lifespan as a regulator, the Competition Commission of India (established by the Competition Act of 2002 but only coming into existence in 2009) has been extremely assertive in its enforcement outlook, and competition law in India continues to grow in importance as inward investment increases. The author ? a leading Indian competition law practitioner ? discusses the Competition Act that gives the regulator extraterritorial jurisdiction, which foreign companies need in order to keep up-to-date with modern practice and further highlights the differences in competition law practice between India and the EU.
Note
Competition law in India: A practical guide' provides comprehensive, practical guidance by outlining the highly distinctive manner in which competition law is interpreted in the major global market of India. Although relatively young in terms of its lifespan as a regulator, the Competition Commission of India (established by the Competition Act of 2002 but only coming into existence in 2009) has been extremely assertive in its enforcement outlook, and competition law in India continues to grow in importance as inward investment increases. The author ? a leading Indian competition law practitioner ? discusses the Competition Act that gives the regulator extraterritorial jurisdiction, which foreign companies need in order to keep up-to-date with modern practice and further highlights the differences in competition law practice between India and the EU.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
About the Author
v
Foreword
xiii
ch. 1
Introduction to Competition Law
1
1.01.
March towards Competition Law
1
1.02.
Procedure for Investigation
5
A.
Filing of Information
5
B.
Prima Facie Case
6
C.
Investigation by Director and Subsequent Order by the CCI
9
1.03.
Enforcement Powers of the CCI
12
A.
Fines on Companies/Group
12
B.
Fines on Directors/Officers-in-Charge
15
C.
Advocacy Remedy
16
D.
Fines for Non-cooperation/Furnishing False Information
17
E.
Interim Relief
17
1.04.
Competition Law Compliance
18
1.05.
Memorandum of Understanding with Other Anti-trust Authorities
20
1.06.
Appeal Provisions
21
A.
Section 26(2) of the Competition Act
21
B.
Section 26(6) of the Competition Act
21
C.
Sections 27, 28 and 31 of the Competition Act
21
D.
Section 33 of the Competition Act
21
E.
Section 38 of the Competition Act
21
F.
Section 39 of the Competition Act
22
G.
Sections 43, 43 A, 44 and 45 of the Competition Act
22
H.
Section 46 of the Competition Act
22
1.07.
Private Action
23
1.08.
Due Process
23
1.09.
Power of Recall
29
1.10.
Settlement or Compromise under the Competition Act
30
1.11.
Competition Assessment Guidelines
31
1.12.
Sector Inquiry
32
1.13.
Enterprise
32
1.14.
Relevant Market
35
A.
Relevant Product Market
36
B.
Relevant Geographic Market
37
C.
Trends of the CCI
37
1.
Starting Point of Analysis
37
2.
Relevant Geographic Market Can Only Be India
38
3.
Online versus Offline Distribution Model
38
4.
Aftermarket versus Unified Systems Market
40
5.
Lack of Scientific Sampling
41
ch. 2
Anti-competitive Agreements and Competition Law
43
2.01.
Legal Framework
43
2.02.
Legal Framework of Cartels in India
44
2.03.
Existence of an Agreement
45
2.04.
Single Economic Entity
47
2.05.
Determination of Relevant Market
49
2.06.
Types of Cartel
49
A.
Price Fixing
51
B.
Output Controls/Limiting Production
51
C.
Market Sharing
53
D.
Bid Rigging
53
2.07.
Structural Factors Aiding Cartelization
54
A.
Highly Concentrated/Oligopolistic Market
55
B.
Demand & Supply Conditions
56
C.
Homogeneous Product
57
D.
Active Trade Association
57
2.08.
Appreciable Adverse Effect on Competition in India
58
A.
Creation of Barriers to New Entrants in the Market
58
B.
Foreclosure of Competition by Hindering Entry into the Market
59
C.
Accrual of Benefits to Consumers
59
2.09.
Standard of Proof
59
2.10.
Direct Evidence
62
2.11.
Indirect Evidence - Role of Circumstantial Evidence
62
A.
Communication Evidence
64
1.
Frequent Meetings among Competitors
64
2.
Publication of Price Bulletin
66
3.
Commonality of Key Business Personnel
67
4.
Other Evidences
67
B.
Economic Evidences
67
1.
Analysis of Final Price in Comparison to the Input Price
69
2.
Price Correlation Exercise for All Market Participants
70
3.
Production Capacity and Capacity Utilization
71
4.
Profit Margin of the Market Participants
72
5.
Bid Price v. Input Price
72
6.
Third- Party Analysis
73
2.12.
Case Studies
73
A.
Builders Association of India v. Cement Manufactures Association and Ors (Cement Cartel Case)
73
1.
Market Is Oligopolistic
74
2.
Price Increase
74
3.
Reason for Price Change
74
4.
Price Has No Nexus with Cost
75
5.
Price Not Based on Demand
75
6.
Huge Margins for the Cement Companies
75
7.
Price Correlation
76
8.
Production and Capacity Utilization Analysis
76
9.
Dispatch Parallelism
76
10.
Comparison of Price Index with Capacity Utilization Index
77
11.
Price Leadership and Signalling
77
12.
Communication Evidence via the Cement Manufacturers' Association
78
B.
Indian Sugar Mills Association, National Federation of Co-operative Sugar Factories Ltd., All India Flat Tape Manufacturers' Association v. Indian Jute Mills Association, Gunny Trade Association and Ministry of Textiles (Jute Mills Case)
85
C.
Express Industry Council of India v. Jet Airways, Indigo, SpiceJet
88
D.
In Re: Manufacturers of Asbestos Cement Products
90
E.
In Re: All India Tyre Dealers Federation v. Tyre Manufactures Association (The Tyre Case)
93
F.
Crown Theatre v. Kerala Film Exhibitors
96
G.
Practices in the Pharmaceutical Industry
97
1.
Boycott
98
2.
No Objection Certificate
98
3.
PIS Approval
99
4.
Fixing of Trade Margins
99
H.
In Re: Suo-Motu Case against LPG Cylinder Manufacturers (LPG Case)
100
I.
Cartelization by Public Sector Insurance Companies in Rigging the Bids Submitted in Response to the Tenders Floated by the Government of Kerala for Selecting Insurance Service Provider for RSBY (Insurance Cartel Case)
111
J.
In Re: M/s Sheth & Co & Others
112
K.
Suo-Moto Case No. 02/2011 In Re: Aluminium Phosphide Tablets Manufacturers (Aluminium Phosphide Case)
114
L.
M/s Bio-Med Private Limited v. M/s GlaxoSmithKline Pharmaceutical Limited, M/s Sanofi, Mumbai
117
2.13.
Trade Association
119
2.14.
Personal Liability
120
2.15.
Joint Venture Defence
122
2.16.
Leniency Regime
125
2.17.
Factors to Determine Appreciable Adverse Effect on Competition in India
129
2.18.
Vertical Agreements
134
A.
Tie-in Arrangement
135
B.
Exclusive Distribution Agreement
136
C.
Exclusive Supply Agreement
137
D.
Refusal to Deal
137
E.
Resale Price Maintenance
137
2.19.
Case Studies for Agreements
140
A.
Shamsher Kataria v. Honda Siel Cars India Limited & Ors
140
1.
Secondary Market of Supply for Spare Parts
141
2.
Secondary Market of Repair and Maintenance Services
142
3.
Restrictions of Dealers in Dealing in Other Brands of Cars
142
B.
Ramakant Kiri v. Dr. LH Hiranandani Hospital, Powai, Mumbai
144
C.
Sonam Sharma v. Apple Inc, Apple India, Vodafone Essar and Bharti Airtel (Apple Case)
146
D.
Shri Ghanshyam Das Vij v. M/s Bajaj Corp Limited
149
E.
M/s Shubham Sanitarywares v. Hindustan Sanitarywares & Industries
150
F.
Mohit Manglani v. Flipkart India Private Limited, Jasper Infotech Private Limited, Xerion Retail Private Limited, Amazon Seller Services Private Limited, Vector E-commerce Private Limited
151
G.
M/s Jasper Infotech Private Limited (Snapdeal) v. M/s KAFF Appliances (India) Pvt. Ltd. (61 of 2014)
152
H.
M/s Fx Enterprise Solutions India Pvt. Ltd v. M/s Hyundai Motor India Limited
153
2.20.
Exemption under Section 3 of the Competition Act
154
ch. 3
Abuse of Dominance and Competition Law
157
3.01.
Legislative Framework
157
3.02.
Position of Strength
158
3.03.
Examining Position of Strength by Conduct of the Enterprise
164
A.
Can NSE Sustain Zero Pricing Policy in the Relevant Market Long Enough to Outlive Effective Competition?
165
B.
Does the Policy of NSE to Provide Complete Transaction Waivers Make Any Commercial Sense?
166
C.
Would the NSE Been in a Position to Provide Complete Transaction Waivers Endlessly Had It Not Have Such Financial Muscle?
166
3.04.
Indices of Dominance
167
A.
Market Share
168
B.
Strength of the Enterprise vis-à-vis the Competitors
169
C.
Entry Barriers
171
D.
Buyer Power
173
E.
Statutory Monopoly
175
F.
Using the Regulatory Power to Enter Commercial Activities
176
3.05.
Abuse of Dominance
177
A.
Unfair and Discriminatory Pricing
181
1.
Excessive Pricing
182
2.
Predatory Pricing
186
3.
Differential Pricing
191
B.
Unfair Terms and Conditions
192
C.
Limiting or Restricting Production and Technical Development
209
D.
Denial of Market Access
213
E.
Imposing Supplementary Obligations
219
F.
Leveraging of Dominant Position
220
3.06.
Objective Justification
223
ch. 4
Mergers and Competition Law
225
4.01.
Introduction
225
4.02.
Threshold Limits
226
A.
Parties to the Combination
226
B.
Group Thresholds
226
4.03.
Target Level/De Minimis Exemption
227
4.04.
Shares
230
4.05.
Group
231
4.06.
Control
233
4.07.
Calculation of Asset Value
238
4.08.
Calculation of Turnover
240
4.09.
Key Issues in Accounting
240
4.10.
Obligation to Notify a Combination
242
4.11.
Penalty for Non-filing/Belated Filing
251
4.12.
Exclusions and Exemption
253
A.
Acquisition by Public Financial Institution, Foreign Institutional Investor, Bank or Venture Capital Fund
253
B.
Exempt Transactions
254
4.13.
Treatment of Offshore Combination
262
4.14.
Procedure for Investigation of a Combination
264
A.
Phase 1
264
B.
Phase 2
267
4.15.
Substantive Analysis of Combinations
269
A.
Combined Market Share
273
B.
Presence of Overlaps
274
C.
Barriers to Entry
277
D.
Buyer Power
277
E.
Presence of a Sectoral Regulator
277
F.
Role of Efficiencies as a Defence
279
4.16.
Commitments
280
A.
Non-compete
281
B.
Structural Commitments
282
1.
Sun Ranbaxy Merger
282
2.
Holcim Lafarge Merger
289
4.17.
Mismatch of Timeline and Remedies: The Clash between Twin Regulators
291
ch. 5
Intellectual Property and Competition Law
293
5.01.
Friends in Disagreement
293
5.02.
Jurisdiction of the CCI over IPR issues
293
5.03.
Scope of the IPR Exemption
297
5.04.
Anti-competitive Practices Emanating out of IPRs
303
A.
Pricing Abuse
303
1.
Excessive Pricing
304
2.
Differential Pricing
307
3.
Minimum Commitment Charge
308
4.
Advocacy Initiatives of the CCI
308
B.
Non-pricing Abuse
309
1.
Onerous Terms in the Licencse Agreement
309
2.
Advocacy Initiatives of CCI
309
5.05.
Refusal to Deal and Compulsory Licensing
310
5.06.
IP Remedies in Mergers
313
Index
315