Competition Law in India
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MUMBAI SILICON VALLEY BANGALORE SINGAPORE MUMBAI BKC NEW DELHI MUNICH NEW YORK Research MUMBAI SILICON VALLEY BANGALORE 93 B, Mittal Court, Nariman Point 220 S California Ave., Suite 201 Prestige Loka, G01, 7/1 Brunton Rd Competition Law Mumbai 400 021, India Palo Alto, California 94306, USA Bangalore 560 025, India Tel +91 22 6669 5000 Tel +1 650 325 7100 Tel +91 80 6693 5000 Fax +91 22 6669 5001 Fax +1 650 325 7300 Fax +91 80 6693 5001 in India SINGAPORE MUMBAI BKC NEW DELHI Level 30, Six Battery Road 3, North Avenue, Maker Maxity C–5, Defence Colony Singapore 049 909 Bandra–Kurla Complex New Delhi 110 024, India Mumbai 400 051, India Tel +65 6550 9856 Tel +91 11 4906 5000 December 2020 Tel +91 22 6159 5000 Fax +91 11 4906 5001 Fax +91 22 6159 5001 MUNICH NEW YORK Maximilianstraße 13 375 Park Ave Suite 2607 80539 Munich, Germany New York, NY 10152 Tel +49 89 203 006 268 Tel +1 212 763 0080 Fax +49 89 203 006 450 Competition Law in India © Nishith Desai Associates 2020 [email protected] © Nishith Desai Associates 2020 www.nishithdesai.com Competition Law in India December 2020 [email protected] DMS Code: WORKSITE!570106.1 © Nishith Desai Associates 2020 Competition Law in India About NDA We are an India Centric Global law firm (www.nishithdesai.com) with four offices in India and the only law firm with license to practice Indian law from our Munich, Singapore, Palo Alto and New York offices. We are a firm of specialists and the go-to firm for companies that want to conduct business in India, navigate its complex business regulations and grow. Over 70% of our clients are foreign multinationals and over 84.5% are repeat clients. Our reputation is well regarded for handling complex high value transactions and cross border litigation; that prestige extends to engaging and mentoring the start-up community that we passionately support and encourage. We also enjoy global recognition for our research with an ability to anticipate and address challenges from a strategic, legal and tax perspective in an integrated way. In fact, the framework and standards for the Asset Management industry within India was pioneered by us in the early 1990s, and we continue to remain respected industry experts. We are a research based law firm and have just set up a first-of-its kind IOT-driven Blue Sky Thinking & Research Campus named Imaginarium AliGunjan (near Mumbai, India), dedicated to exploring the future of law & society. We are consistently ranked at the top as Asia’s most innovative law practice by Financial Times. NDA is renowned for its advanced predictive legal practice and constantly conducts original research into emerging areas of the law such as Blockchain, Artificial Intelligence, Designer Babies, Flying Cars, Autonomous vehicles, IOT, AI & Robotics, Medical Devices, Genetic Engineering amongst others and enjoy high credibility in respect of our independent research and assist number of ministries in their policy and regulatory work. The safety and security of our client’s information and confidentiality is of paramount importance to us. To this end, we are hugely invested in the latest security systems and technology of military grade. We are a socially conscious law firm and do extensive pro-bono and public policy work. We have significant diversity with female employees in the range of about 49% and many in leadership positions. © Nishith Desai Associates 2020 Provided upon request only Accolades A brief chronicle of our firm’s global acclaim for its achievements and prowess through the years – § Benchmark Litigation Asia-Pacific: Tier 1 for Government & Regulatory and Tax 2020, 2019, 2018 § Legal500: Tier 1 for Tax, Investment Funds, Labour & Employment, TMT and Corporate M&A 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012 § Chambers and Partners Asia Pacific: Band 1 for Employment, Lifesciences, Tax and TMT 2020, 2019, 2018, 2017, 2016, 2015 § IFLR1000: Tier 1 for Private Equity and Project Development: Telecommunications Networks. 2020, 2019, 2018, 2017, 2014 § AsiaLaw Asia-Pacific Guide 2020: Tier 1 (Outstanding) for TMT, Labour & Employment, Private Equity, Regulatory and Tax § FT Innovative Lawyers Asia Pacific 2019 Awards: NDA ranked 2nd in the Most Innovative Law Firm category (Asia-Pacific Headquartered) § RSG-Financial Times: India’s Most Innovative Law Firm 2019, 2017, 2016, 2015, 2014 § Who’s Who Legal 2019: Nishith Desai, Corporate Tax and Private Funds – Thought Leader Vikram Shroff, HR and Employment Law- Global Thought Leader Vaibhav Parikh, Data Practices - Thought Leader (India) Dr. Milind Antani, Pharma & Healthcare – only Indian Lawyer to be recognized for ‘Life sciences-Regulatory,’ for 5 years consecutively § Merger Market 2018: Fastest growing M&A Law Firm in India § Asia Mena Counsel’s In-House Community Firms Survey 2018: The only Indian Firm recognized for Life Sciences § IDEX Legal Awards 2015: Nishith Desai Associates won the “M&A Deal of the year”, “Best Dispute Management lawyer”, “Best Use of Innovation and Technology in a law firm” and “Best Dispute Management Firm” © Nishith Desai Associates 2020 Competition Law in India Please see the last page of this paper for the most recent research papers by our experts. Disclaimer This report is a copy right of Nishith Desai Associates. No reader should act on the basis of any statement contained herein without seeking professional advice. The authors and the firm expressly disclaim all and any liability to any person who has read this report, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this report. Contact For any help or assistance please email us on [email protected] or visit us at www.nishithdesai.com Acknowledgements Pratibha Jain [email protected] Simone Reis [email protected] Payel Chatterjee [email protected] Vinay Shukla [email protected] Prashant Prakhar [email protected] Krithika Ramesh [email protected] Atikant Kaur [email protected] Mohak Kapoor [email protected] © Nishith Desai Associates 2020 Competition Law in India Contents 1. INTRODUCTION 01 2. ANTI-COMPETITIVE AGREEMENTS 02 I. Examination at the stage of Section 26 (1) 04 II. Examination at the stage of passing an order under Section 26 (2) and Section 27 05 3. ABUSE OF DOMINANCE 06 I. Examination at the stage of Section 26 (1) 08 II. Examination at the stage of Section 26 (2) and 27 09 4. PROCEDURAL CONSIDERATIONS IN BEHAVIORAL CASES 10 I. Introduction 10 II. CCI Inquiry Process 10 III. Before DG Investigation 10 IV. DG Investigation 10 V. Post DG Investigation 11 VI. Special Investigative Tools 13 VII. Leniency 13 VIII. Leniency available for cartels only 13 VIII. Leniency process before the CCI 13 IX. Dawn raids 14 X. Applicable cases 14 XI. Appeal process 14 XII. Appealable orders 14 XIII. Procedure before the NCLAT 15 XIV. Supreme Court 15 XV. Writ jurisdiction 15 5. MERGER CONTROL REVIEW 16 I. Overview of the merger control regime under the Competition Act 16 II. Jurisdictional thresholds 16 III. Exemptions 17 IV. Statutory Exemptions 17 V. Target Based Exemption 18 VI. Other MCA exemptions 18 VII. Process considerations 18 VIII. Phase I and Phase II Inquiries 18 IX. Form I v. Form II 19 X. Green Channel 19 XI. Pre-filing Consultation 19 XII. Post CCI Notification 19 XIII. Assignment of case team 20 XIV. Consequences for non-compliance 20 XV. Appeals 20 © Nishith Desai Associates 2020 Competition Law in India 6. RISK MITIGATION STRATEGIES BASED ON JURISPRUDENTIAL TRENDS 21 I. Introduction 21 II. High scrutiny sectors 21 III. General take-aways for high scrutiny sectors 21 IV. High level risk mitigation strategies for market leaders 23 V. Determining compliance requirement 23 VI. Arrangements with distributors and dealers 23 VII. Dual role of regulator and participant 24 VIII. High level risk mitigation strategies for dealing with rivals 24 IX. Direct contact with competitors 25 X. Indirect contact with competitors 25 XI. Observations and recommendations 25 ANNEXURE A 26 Summaries of Cases discussed in the Report 26 ANNEXURE B-1 38 Orders under Section 26 (1) of the Act Directing Investigation by DG 38 ANNEXURE B-2 42 Orders Passed under Section 26 (2) of the Act by the Commission Dismissing the Case 42 ANNEXURE B-3 58 Orders under Section 26 (6) of the Act directing further investigation 58 ANNEXURE B-4 61 Orders under Section 27 of the Act holding conduct of opposite party in violation of the Act 61 © Nishith Desai Associates 2020 Competition Law in India 1. Introduction A vibrant and effective competition law framework in view of the economic development of the country, for is essential for the growth of any economy. It the establishment of a Commission to prevent practices helps in regulating a fair market, devoid of any having adverse effect on competition, to promote and anti-competitive practices that cause harm to the sustain competition in markets, to protect the interests of customers as well as the businesses. Competition law consumers and to ensure freedom of trade carried on by is an essential tool to maintain balance in the markets other participants in markets, in India...’ by ensuring that a few prominent players do not single The Act provides for prohibitions and regulates (A) handedly run the show, rather the market operates in anticompetitive agreements (u/s 3 of the Act) (B) a manner wherein the practices do not lead to barriers abuse of dominant position (u/s 4 of the Act) (C) of entry for small businesses or lead to unfair burden combinations (u/s 5 & 6 of the Act).