Op EdsOP. ED.

“Whoever claims that economic competition represents survival of the fittest in the sense of law of the jungle, provides the clearest possible evidence of his lack of knowledge of economics.”

— George Resiman (American Economist)

Competition regulation refers to the law which is responsible for ensuring fair market forces and preventing anti-competitive behaviour. Instances of competition law were first witnessed in the Roman empire, wherein business practices of traders and Government were scrutinised by Roman legislators. Further growth of the competition regime continued throughout the middle ages and in the British empire. The doctrine of restraint of trade played an important role as a base on which competition jurisprudence was developed in the United Kingdom.

From 1900 until the end of World War II, however, only 13 countries adopted competition laws. During the cold war, another 28 countries adopted competition laws.[1] The laissez-faire economy is a thing of the past and the nations now seek to regulate their external and internal economies. Since the number of capitalist economies is increasing, competition law helps them to maintain and foster healthy competition.

This article looks at the traces of competition law that have existed even before the advent of globalisation, world war and industrialisation.

Early History of Competition Law in Roman Law

The emergence of competition law can be traced to the efforts of Roman legislators to control price fluctuations and unfair trade practices. It is denied by the scholars[2] that the Roman State interfered with the competitive practices of private businessmen. However, the Roman civilisation and market matured, from the punitive edict under Emperor Diocletian in 301 AD. Under his rule, a death penalty could be imposed upon violation of the tariff system – buying, concealing or scheming to manipulate or control the supply and price of various products. Thus, competition law has its roots not only due to the liberalisation of markets to allow competition but also providing social protection with an embedded public policy. This law ensured that the sales were fair.[3] Further, legislation emerged under the Constitution of Zeno of 483 AD. This could be traced to Florentine Municipal Laws of 1322 and 1325 which provided for strict action for any trade combination.[4]

Middle Age and Monopolies under the British Empire

Even before the Norman Conquest, there existed practices of monopolies and restrictions of trade.[5] In 1266, an Act was passed to regulate the corn prices along with the prices of bread and ale. Violations of this Act resulted in penalties including fine, pillory and tumbrels. The Statute of Labourers, 1349[6] was introduced under King Edward III, ordered food materials to be reasonably priced and fixed workmen’s wages. In addition to penalties for violation, this statute also stated merchants who overcharge must pay the injured party double the amount. This concept was later replicated in the US antitrust law.

The tariffs were revived by King Henry VIII in 1553. This was done to equalise prices due to fluctuating supply from abroad. During the same time, various organisations of tradesmen and handicrafts enjoyed various exemptions from the laws against monopolies. These privileges were abolished when the Municipal Corporations Act, 1835 was passed.

Another development similar to the modern patents happened in 1561 with the introduction of the industrial monopoly licences[7]. However, till the reign of Queen Elizabeth came, this was exploited merely to preserve privileges rather than promote innovations. When a protest was made in the House of Commons and a Bill was introduced, the Queen convinced the protesters to challenge the case in the courts. This was the catalyst for the case of monopolies or Darcy v. Allin[8]. The plaintiff, an officer of the Queen’s household, had been granted the sole right from King Charles I, through the civil war and to King Charles II, monopolies continued, especially useful for raising revenue.[9] In 1623 Parliament passed the Statute of Monopolies, which for the most part excluded patent rights from its prohibitions, as well as guilds. Then in 1684, in East India Co. v. Sandys[10], it was decided that exclusive rights to trade only outside the realm were legitimate, on the grounds that only large and powerful concerns could trade in the conditions prevailing overseas. In 1710 the new law was passed to deal with high coal prices caused by Newcastle coal monopoly. Thus, this allowed for government-granted monopolies which could extend their businesses to colonies. Around 1600, Royal Charters were issued to companies by Queen Elizabeth, granting them a monopoly over a particular region to control the trade of various commodities. For instance, the British East India Company and Dutch East India Company were formed by the Royal Charter issued by Queen Elizabeth I. The Charter allowed these organisations for a 21-year monopoly in conducting trade between the East Indies and England. Charters were also issued for a monopoly of trade with Asia.

The British empire, not only impacted the governance of colonies under its rule but also had the power to control its commercial interests in a colony. It favoured its own commercial interests by forming monopolies. Monopolies allowed the British an advantageous position in collecting tax revenues and detection of ships by officials.[11] Detection was necessary to prevent small traders from disguising themselves, thus compelling them to pay customs duties.[12]

Restraint of trade

The earliest appearance of the doctrine of restraint of trade[13] can be traced back to the case which has established itself as a founding precedent – Dyers case (1414)[14]. In this case, an action was bought on a sealed obligation containing a provision that it should be void if the other party did not pursue his trade of dyer within the town where he had formerly carried on such a business for a period of six months. It has provided the base for an attempt by courts to reconcile the freedom to trade with the freedom to contract.[15] The doctrine of restrictions on trade is contractually imposed on competition such as cartels. Unless such contractual restrictions are reasonable in the interest of the parties and are not unreasonable in the public interest, they are not enforceable in legal proceedings. Restraints were judged as permissible or not by courts as new cases appeared and in the light of changing business circumstances.

Conclusion

Therefore, these developments mark the classical development of competition law. Statutory development in the competition regime is a relatively nascent area of law and has been recently developing in various jurisdictions. Today, competition law has become inevitable for developing and developed countries alike.


*Final year student, LLB, Campus Law Center, University of Delhi. Author can be reached at  mozammil10032@oneducic.ac.in

[1] Anu Bradford, Adam S. Chilton, Chris Megaw and Nathaniel Sokol, Competition Law Gone Global: Introducing the Comparative Competition Law and Enforcement Datasets, Journal of Empirical Legal Studies, Vol. 16, p. 411, 2019 (2018).

[2] Alan Watson, Trade Secrets and Roman Law: The Myth Exploded (1996), available at: https://digitalcommons.law.uga.edu/fac_artchop/476

[3] Achieving the sustainable development goals will need healthy competition and consumer, protection too, UNCTAD/PRESS/PR/2016/037, Press Release dated 12-10-2016.

[4] The Law of Restrictive Trade Practices and Monopolies by R.O. Wilberforce, A. Campbell and N.P.M. Elles, London: Sweet & Maxwell, 1957.

[5] The Domesday Book recorded that fore steel i.e. forestalling, the practice of buying up goods before they reach market and then inflating the prices, was one of three forfeitures that King Edward the Confessor, and could carry out through England. But concern for fair prices also led to attempts to directly regulate the market. Under Henry III, an Act was passed in 1266 to fix bread and ale prices in correspondence with corn prices. A fourteenth century statute labelled forestallers as oppressors of the poor and the community at large and enemies of the whole country. Under King Edward III the Statute of Labourers, 1349 fixed wages of artificers and workmen and decreed that foodstuffs should be sold at reasonable prices. Around the 15th century Europe was changing fast. The new world had just been opened up, overseas trade and plunder, was pouring wealth through the international economy and attitudes among businessmen were shifting.(As per – Nalsar Law Review , Vol.7 : No. 1 – Cartels vis-à-vis Competition Law: Judicial Analysis, Dr R.Y. Naidu.)

[6] https://amp.en.google-es.info/4195772/1/ordinance-of-labourers-1349.html

[7]https://escholarship.org/content/qt6z7863q5/qt6z7863q5_noSplash_9a4918d1575bf1059df86d646429b777.pdf

[8] (1602) 74 ER 1131; Herbert Hovenkamp, Antitrust’s Protected Classes, 88 Mich L Rev 1 (1989)

[9] The plaintiff, an officer of the Queen’s household, had been granted the sole right of making playing cards and claimed damages for the defendant’s infringement of this right. Three characteristics of monopoly were identified by the Court and these are (1) price increase; (2) quality decrease; and (3) the tendency to reduce artificers to idleness and beggary.

[10] (1684) 10 St Tr 371.

[11] Dan Bogart, The East Indian Monopoly and Transition from Limited Access in England, National Bureau of Economic Research 1600-1813, (2015) available at <https://www.nber.org/system/files/working_papers/w21536/w21536.pdf>.

[12] Ibid.

[13] A restraint is identified where the parties agree that one party will “restrict his liberty in the future to carry on trade with other persons not parties to the contract in such manner as he chooses [per Diplock L.J., Petrofina (Great Britain) Ltd. v. Martin, 1966 Ch 146, 180 : (1966) 2 WLR 318 (CA)].

[14](1414) 2 Hen 5, f. 5, pl. 26; The Alexander Group Blog, “A current look at the non-compete agreement, one of the world’s oldest business practices”, dated 19-6-2019.

[15] Andrew Scott, The Evolution of Competition Law and Policy in the United Kingdom, LSE Law, Society and Economy Working Papers 9/2009.

Business LawOp EdsOP. ED.

Facebook is investing $5.7 billion or INR 43,574 crore to get close to 10% equity in Jio Platforms Limited.  In its press release[1], the social media giant expressed its intention to connect Jio’s e-commerce platform, JioMart, to small businesses and shops via “the power of WhatsApp” in order to make online shopping a seamless mobile experience. The Jio-Facebook deal announced last week promises to push India’s digital transformation to new heights. However, out of a number of regulatory approvals, Competition Commission of India’s (CCI) approval is the most crucial one. To consummate a deal that crosses the thresholds mentioned under Section 5 of the Competition Act, 2002, CCI’s approval is mandatory. Section 6 sub-section (2) read with Regulation 5 of the Combination Regulations[2] evidences a suspensory regime i.e. the approval must be obtained prior to closing of the deal in the country.

 The deal, as ambitious as it sounds, can run into anti-trust issues. Firstly, the multi-billion-dollar investment into Jio will have to be notified to and approved by India’s competition regulator. For that to happen, CCI will have to take a forward-looking approach and check that the proposed combination does not have potential to cause appreciable adverse effect on the competition in the market. To safeguard the investment from the protectionist approaches of Indian regulators is a crucial factor in consummating the deal and, subsequently, carrying it forward smoothly. Despite the criticism to protectionist regulatory regime, CCI tends to adopt a liberal approach[3]. In the approved RIL-Brookfield tower infrastructure deal, the two were found to be vertical participants and CCI went ahead to analyse if there were any vertical overlap. With RIL’s acquisition of stake in Saudi AramCo at hold, it needs to be more careful with the investment and regulatory concerns with the activities of its digital arm, Jio.

 The strategic investment for acquiring the minority stake is not simply a passive investment. The filing of notice as per Regulation 4 of the Combination Regulations in itself is indicative of the fact that the transaction is not in the ordinary course of business and is backed with an intent of strategic investment to bring in change in control. Thus, the responsibility of CCI is to peruse not only the potential adverse effects on competition but also the potential concerns it may give rise to. It would be interesting to see whether the acquisition of minority stake in India’s leading telecom arm would grant any control to Facebook. Let us look at the possible anti-trust issues that the deal poses:

Dominance: Boon or a bane?

Both Jio and Facebook seem to be dominant players in their respective markets. The  Telecom Regulatory Authority of India’s data points to the fact that Jio has the highest market share in terms of user base and revenue sharing in the telecom market as it holds 32% share in the 1.15-billion-user Indian mobile services market, taking its total user base to 369.93 million, surpassing its competitors Bharti Airtel and Vodafone-Idea. It must also be noted that, unlike others, all Jio connections are 4G based, thus, having a strong base of smartphone users.

Now, Facebook primarily operates via three platforms: facebook.com, Instagram and WhatsApp. All of them seem to be dominant players in the market they operate in. We are only concerned with WhatsApp. Its relevant market seems to be smartphone-based social media messaging platform. WhatsApp has more than 400 million[4] confirmed users in India, while around 600 million[5] people have access to internet[6] in the country. Other competitors to WhatsApp in India are hike, WeChat, Telegram, which only have a fraction of the users as WhatsApp.

Jio plans to revolutionise JioMart by combining it with WhatsApp to integrate small and medium scale ‘kirana’ businesses to cater to the demand. This would firstly strengthen the position of mom-pop shops in the local market by sewing them into the digital framework and secondly would attempt to penetrate into another market by using the dominance of WhatsApp.

More so, WhatsApp could possibly allow JioMart to operate on its messaging platform. If done so, and in the manner that WhatsApp comes with pre-embedded JioMart platform, it could lead to abuse of dominance under Section 4(2)(d) as installing WhatsApp would be the main contract and pre-embedded JioMart would be the unconnected supplementary obligation. This would also mean that the users would not be allowed to embed any other e-commerce portal on WhatsApp messenger, which would again seem to be causing disruption in the competition in the market and unfair to consumers as it would leave no choice to them but accept the imposed deal.

Another advantage post the deal would be of control over consumer data. As of now, RIL Chief has said that there is no agreement for transferring of consumer data between the parties; however, this does not erode the possibility of entering into such agreements in the near future. While control over data has been used by Competition Regulators in examining the e-commerce and digital platforms’ anti-competitive conduct (viz. Amazon-Flipkart case[7], Sonam Sharma v. Apple Inc. USA[8]), this factor in the present case must be dealt with utmost seriousness and conviction to ensure survival of healthy competition in the e-commerce market, especially at a time when Facebook has been imposed with $5 billion fine over data privacy violation[9].

Appreciable Adverse Effect on Competition: Is it too soon?

Where the strategic investment is with the intent to enter into a different segment using the control in respective markets to enter into an entirely different product market, the parameters to check the potential adverse effect on the competition must be comprehensive. In re, Google LLC[10], CCI observed that there is a need to not only delineate primary relevant market but also associated markets to relevant markets that have been affected by the conduct of the parties involved. Section 20 sub-section (4) lists the factors that CCI must consider to conclude if there is any appreciable adverse effect on the competition because of the proposed combination.

The essence of this checklist is to look for horizontal or vertical overlap in the activities post acquisition. While there seems to be no horizontal overlap, there definitely could be a case of vertical integration. Jio provides internet to smartphone, smartphones use internet to operate WhatsApp and now WhatsApp would integrate JioMart. It is not only vertical integration but use of dominant position in one market to enter into a new market, and thus would be likely to effect adversely the natural competition in the ‘phygital’ commerce market (as has been recently termed).

The analysis must be based not only on the market share of the deal participants both pre and post-acquisition but must also mindfully address the data sharing aspect of the deal, considering these data mammoths’ conduct in the recent past. The US Court imposing record $5 billion fine on Facebook for privacy violations is in itself a warning for the Indian regulators to intervene in this far reaching deal especially, to protect the Indian start-up movement that is also an important wing of the Digital India flight. The deal no doubt has potential of creating business and commercial barriers for local tech start-ups. The primary purpose of the merger control regime is to foresee adverse effects and to live up to this objective, CCI must take cognizance of the interrelatedness of this deal.

One can at the same not ignore the importance of balance between the commercial interest and the consumer welfare interests. Though the weighing scale can never be equal for both, what is important for CCI as a regulator of omnipotent economic concerns is that it shouldn’t step on the commercial prospects deal participants like such to ensure distributive justice.

The deal will undoubtedly push the CCI’s merger control jurisprudence into a comprehensive one and shall be significant in laying down a vigilant yet compendious framework for future deals. While we are still speculating about the nature of the deal, JioMart has started testing WhatsApp for grocery orders in pursuance of the proposed deal. “The customer initiates the interaction on WhatsApp, checks out the grocery order on JioMart webpage, gets connected with a retail store on WhatsApp and then customer picks up the order from Kirana and pays in cash,” said the news report[11].


*Prateek and Samanvi are pursuing Master of Laws (LL.M.) in Corporate and Commercial Law from Nalsar University of Law, Hyderabad

[1] Press release by Facebook (21.02.2020), https://about.fb.com/news/2020/04/facebook-invests-in-jio/

[2] Competition Commission of India (Procedure in regard to the transactions of business relating to combinations) Regulations, 2011 

[3] CCI has cleared over 600 combinations, and has not blocked even a single one. Only eight were subject to detailed Phase II enquiry, India: Merger Control (4th Edn.), AZB Partners, https://www.azbpartners.com/bank/india-merger-control-4th-edition/,

[4] Manish Singh, WhatsApp reaches 400 million users in India, Tech Crunch, (26.07.2020), https://techcrunch.com/2019/07/26/whatsapp-india-users-400-million/

[5] Sanika Diwanji, Number of internet users in India from 2015 to 2018 with a forecast until 2023, Statista, (31.03.2020), https://www.statista.com/statistics/255146/number-of-internet-users-in-india/

[6] PTI, Internet users in India to reach 627 million in 2019, Economic Times, (06.03.2019)

[7] Delhi Vyapar Mahasangh v. Flipkart Internet Private Limited

[8] 2013 SCC OnLine CCI 25

[9] AFP, Cambridge Analytica: US Court Approves Record $5 Billion Fine of Facebook Over Privacy, NDTV (25.04.2020)

[10] Umar Javeed v. Google LLC, Case No. 39 of 2018, dated 16-4-2019

[11] Reliance Begins Using Whatsapp for Grocery Deliveries Through JioMart, Business Standard, (27.04.2020)

OP. ED.Practical Lawyer Archives

“Confidentiality is a virtue of the loyal, as loyalty is the virtue of faithfulness.”

—Edwin Louis Cole

Introduction

The principle of confidentiality and privacy are two basic requirements of commercial arbitration. It is, thus, quite imperative for the antitrust laws to include scope for confidentiality and privacy within its ambit. In India, the statutory provisions for confidentiality are provided in the Competition Act, 2002 (Section 57) and the Competition Commission of India (General) Regulations, 2009 (Regulation 35). The mandate for privacy has been provided under Regulation 47 of the Competition Commission of India (General) Regulations, 2009.

The Legislative Mandate to Confidentiality

A. The Monopolies and Restrictive Trade Practices (MRTP) Act, 1969

Section 60(1) of the MRTP Act, 1969 corresponds with Section 57 of the Competition Act, 2002. However, the MRTP Act listed down several limitations to this provision under sub-sections (2) and (3) of this section. These limitations formed exceptions where the protection from disclosure was not available:

(i) when disclosure is made in connection with legal proceedings under the MRTP Act;

(ii) when disclosure is made for any criminal proceedings under the MRTP Act; and

(iii) when the disclosure is made for the purposes of any report relating to any proceedings, as stated above.[1]

However, these limitations have not been included in the Competition Act.

B. The Competition Act, 2002

The Competition Bill, 2001— notes on Clause 55 stipulates “This clause deals with restriction on disclosure of information by the Commission.”

C. The Competition (Amendment) Act, 2007

Later an amendment was brought to the Section 57 of the Competition Law in 2007, and the Competition (Amendment) Bill, 2007—notes on Clause 44 states “This clause seeks to amend Section 57 of the Competition Act, 2002 relating to restriction on disclosure of information. It is proposed to bring the Appellate Tribunal within the scope of Section 57 of the Competition Act, 2002 consequent to the proposal to insert a new Chapter VIII-A vide Clause 43 of the Bill. The proposed amendment is consequential in nature.”

Purpose of Confidentiality Clause

A. Protection of Trade Secrets

The purpose of the provision for confidentiality in the Act is to preserve commercial secrecy as such information if it comes to the knowledge of business rivals, may injure the interest of the enterprise concerned[2].

In Sterlite Industries (India) Ltd. v. Designated Authority[3], the Court held that in antitrust cases preservation of confidential information by the designated authority is necessary as the trade competitors would otherwise obtain information which are not made available to them for preserving competition in the market.

The section aims at protecting the information obtained by the Commission during its investigation. Section 41(3) of the Competition Act provides for the application of Sections 240 (Section 217 of the Companies Act, 2013) and 240-A (Section 220 of the Companies Act, 2013) of the Companies Act, 1956 in pursuance of the investigation activities undertaken by the Director General (DG) or any other person investigating under his authority[4].

Thus, the DG or any other person acting under his authority has complete access to the documents of any enterprise under investigation which might contain confidential and sensitive information. So, the company runs the risk of this information being leaked or disclosed.

In Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India[5], on the issue of apprehension as to a breach of confidentiality in relation to the confidential information provided to the Commission, the Delhi High Court held that it was the duty of the DG and the employees of the Commission to protect the confidential information of Ericsson for which adequate measures must be taken.

B. Protection of Identity of the Informant

Another aspect of this principle is to protect the identity of the informant or the applicant[6]. This is done so as to not put the informant in a position of disadvantage. Also, this ensures that the fundamental right of privacy guaranteed under Article 21 is also protected.

However, the DG may disclose the information, documents and evidence furnished by the enterprise if he deems it necessary but only after recording the reasons for the same and taking prior approval of the Commission[7].

C. Reputation Loss

Loss of reputation and consequent exposure to civil suits against them is another aspect of maintain confidentiality. It could also expose the financial position of a company or the existence of a defective product, situations that could compromise the image of a company in front of the public and favour its competitors.

Conditions Waiving Confidentiality Claims

Section 57 of the Competition Act, 2002 carves out an exception wherein the confidential information can be disclosed. Hence, the right can be taken away on two grounds:

(i) waving of the right by the enterprise itself; and

(ii) for the purpose of this Act or any other law for the time being in force.

Disclosure of the Identity of the Informant—The proviso to Regulation 6(a) of the Competition Commission of India (Lesser Penalty) Regulations, 2009 provides for the conditions under which the identity of the applicant may be disclosed, if:

(a) the disclosure is mandated by law; or

(b) the applicant has voluntarily consented to disclose in writing; or

(c) the applicant discloses it publically.

Grounds for Taking Away the Privacy of an Enterprise During a Proceeding—Regulation 47 of the Competition Commission of India (General) Regulations, 2009 requires the proceedings before Commission not to be open to public. However, the Commission may direct otherwise and record the reasons for the same. The factors to be taken into account by the Competition Commission of India (CCI) while deciding on this matter are:

(a) If no significant harm is caused to party owing to the disclosure.

(b) Level of encouragement in publishing the information.

(c) Efficiency and smooth functioning of the proceeding.

(d) Considerations for the Commissions such as its resources.

According to Rule 7(3) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, if the designated authority comes to the conclusion that the information does not need protection of confidentiality, he can “disregard that information”.

In Sterlite Industries (India) Ltd. v. Designated Authority[8], the Court held that whether an information warrants confidentiality depends on a case-to-case basis which is to be decided by the designated authority. Also, the Appellate Authority, Customs, Excise and Gold (Control) Appellate Tribunal (Cegat), can look into the information even where confidentiality is required.

In Shamsher Kataria v. Honda Siel Cars India Ltd.[9], the CCI agreed with the DG on his statement that “confidential information must be in fact confidential and backed by an obligation/duty of confidence owed between the parties sharing such information.” It held that party must satisfactorily prove that the information provided to the other party qualified to be protected as “trade secret”.

The ICN Guiding Principles for Procedural Fairness in Competition Agency Enforcement stipulates for the inclusion of a system for better identification and shielding the business information that is considered to be confidential and those covered within the ambit of privileged information.

Various determinants such as rights of defence, confidentiality claims, third-party rights, influence on the competition should be considered while disclosing any information mentioned as above.

Liability for Non-Compliance of Confidentiality

In case of negligence leading to a failure to maintain confidentiality and secrecy of the sensitive information provided to the Commission or the DG, a claim for loss or damages could lie against the Commission/DG[10].

According to Regulation 9 of the Competition Commission of India (Procedure for Engagement of Experts and Professionals) Regulations, 2009, any breach of agreement by or on behalf of any expert or professional, executed under sub-regulation (1), requiring the experts and professionals engaged in the proceeding to sign an agreement containing a clause of secrecy, shall be considered a sufficient ground for termination of the engagement made under contract and may further debar such expert or experts and professionals.

Conclusion: Balancing Confidentiality Claims with Due Process

The conflict between confidentiality laws and natural justice was long pending. Thus, the development of leniency regime in India has been welcomed from all quarters of the corporate sphere. Pursuant to Section 46 of the Competition Act, 2002, the Commission is empowered to impose lesser penalty in certain cases where “full and true disclosure” has been made and such disclosure is deemed to be vital. Interestingly, there has been an increase in the number of applications filed for leniency before the CCI in the recent years. The decision regarding what is “full” and “vital” disclosure lies with the Commission. The Commission rewarded its first 100% reduction in penalty in Anticompetitive conduct in the Dry-Cell Batteries Market in India v. Panasonic Corpn.[11]

Further, inspired by the EU, CCI has initiated the process to set up “confidentiality ring” in some cases.[12] This allows a restrictive use of information by the opposite party’s counsel in a manner not prejudicial to the party concerned. Also, efforts have been made by the CCI to facilitate a bilateral exchange of information allowing a speedy investigation process. In light of the above observations, it is thus concluded that the approach of India meets the best practices already implemented in other jurisdictions.


Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in.

Shashank Saurabh is a Student Researcher, 4th year student, BA LL.B. (Hons.) from NUSRL, Ranchi.

[1] S.M. Dugar, Guide to Competition Law 1002 (8th edn., 2019).

[2] ibid

[3]  (2006) 10 SCC 386 : (2003) 158 ELT 673.

[4]. S. 240 of the Companies Act, 1956 enjoins a company to produce to an inspector all books and papers relating to the company or any other body corporate and provide any other assistance required by the inspector for his investigation. Sub-s. (1-B) of S. 240 also empowers the inspector to retain the books and papers for a period of six months.

S. 240-A empowers the inspector to apply for an order of seizure of books and papers relating to a company or managing director or manager of such company which he has reasonable grounds to believe would be destroyed, mutilated, altered, falsified or secreted.
He has the power to retain these books and papers till the conclusion of the investigation.

S. 2(8) of the Companies Act, 2013 provides an expansive definition of the expression “book and paper” which includes “acts or accounts, deeds, vouchers, writing and documents”.

[5] 2016 SCC OnLine Del 1951.

[6]. Regn. 35, Competition Commission of India (General) Regulations, 2009. Also, Regn. 6(a) of the Competition Commission of India (Lesser Penalty) Regulations, 2009.

[7].Proviso to Regn. 6(a) of the Competition Commission of India (Lesser Penalty) Regulations, 2009.

[8]. Supra note 3.

[9]. 2014 SCC OnLine CCI 95 : 2014 Comp LR 1.

[10]. Supra note 5.

[11]. 2018 SCC OnLine CCI 81.

[12]. AZB & Partners, India: Balancing Confidentiality Claims with Due Process Requirements, Mondaq (26-9-2019 <https://www.mondaq.com/india/ Anti-trustCompetition-Law/848748/ Balancing-Confi dentiality-Claims-With-Due-Process-Requirements>.

Law School NewsOthers

Gujarat National Law University Center for Corporate and Competition Law organising a workshop on Recent Trends in Competition Law on November 20, 2018.

About the Workshop

The Competition Commission of India has played an effective role in improving the market economy by facilitating ease of access to service to its customers. Competition among businesses has long been encouraged as a mechanism to increase value for consumers. In other words, competition maintains the provision of better products and services to satisfy the needs of customers.

Moreover, the history of innovation suggests that competition laws and competition law authorities have consistently played an important role to implement its regulation. There are various examples from across the globe that reflect the important role competition law has played, and continues to play, in regulating innovation.

Competition Law has an important role in day-to-day business of a company. As businesses adjust their practices to the changing market environment, the boundaries of the law are greatly challenged. Enforcement of competition law requires experts from different sectors of the economy and disciplines of law and economics.

Cases involving Google or Facebook as well as attempts to regulate AirBnB and Uber or the position of household energy producers may serve as examples. Busting cartels is the utmost priority of any competition agency as they are the most egregious violation of competition law and hence this workshop will provide a unique learning on the professional practice and experience as to how to further specialize in competition law and study the regulatory framework applicable to economic activities in fast-moving and progressively digitalized markets.

Aims
  1. To understand relevant laws and regulations governing competition in the Indian market
  2. To learn about the recent trends in competition law and its application in the relevant field
Who can participate?

The workshop is open for students pursuing graduate studies in the field of law, economics, business and management, members of academics and professionals of allied disciplines.

Registration

Kindly send the soft copy of duly filled registration form along with the copy of payment made by email with the subject as Registration for ‘Workshop on recent trends in competition law’ to centregcccl@gnlu.ac.in.

Last Date for Registration: 15th November 2018

Fees

  • Rs. 2000/- for GNLU students
  • Rs. 5000/- for Others

Payment Link: https://www.onlinesbi.com/prelogin/icollecthome.htm?corpID=627430

Contact

For any details and clarification, kindly contact:
Ms. Aparna Pandey (Research Associate); Email: centregcccl@gnlu.ac.in
Phone No. 91-8511188734

For more details refer, brochure-GNLU 

Registration-Form-GNLU

Law School NewsMoot Court Announcements

The Competition Commission of India (CCI), in collaboration with National Law University, Delhi (NLUD) will organise the 2nd edition of the CCI-NLUD Competition Law Moot in March, 2019 at National Law University, Delhi.

The Organisers-Competition Commission of India is a regulatory body established by the Government of India with effect from 14 October 2003. The duty of the Commission is to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade in the markets of India. The Commission is also required to undertake competition advocacy, create public awareness and impart training on competition issues. National Law University, Delhi is a premier law university in India established by the National Law University Act 2007 (Delhi Act No. 1 of 2008). The University has successfully organised several moots in the past, including South-Asia Rounds Oxford Price Media Law Moot Court Competition, India Rounds of ICC Trial Moot Court Competition, Vis Pre-Moot. The University has now gained a reputation for its impeccable quality in organisation of moots. The venue of the Rounds of the Moot shall be the premises of National Law University, Delhi.

Format of the Moot-The Moot shall be based on the memorial elimination format. The top twenty (20) teams shall be selected to plead before eminent judges from the bar, bench, regulatory authorities, academia and industry in March 8-10.

The Moot Schedule-The Schedule for the Moot is as follows:

  • Opening of Registration: November 1, 2018
  • Release of the Moot Problem: November 1, 2018
  • Last date of Submission of Memorials: January 14, 2019
  • Oral Rounds: March 9-10, 2019

Eligibility-All participants must be full-time candidates presently enrolled in an undergraduate degree programme in law in India.

Contact Queries may be addressed to Prof. (Dr.) Harpreet Kaur (Faculty Coordinator) at ccinludmoot@nludelhi.ac.in

 

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): An information alleging abuse of dominant position by Prateek Realtors India Pvt. Ltd. (Prateek Realtors) with regard to sale of an apartment in Noida, Uttar Pradesh, was dismissed by CIC on the ground that Prateek Realtors was not a dominant player in the market for provision of services for the development and sale of residential unit in Noida and Greater Noida. Earlier, Prateek Realtors developed a residential housing complex, namely, ‘Prateek Laurel’ on the plot in Noida and offered residential apartments.

The Informant booked a finished residential apartment in the said project, after payment of the booking amount and signed a residential apartment ‘allotment letter’. It was alleged in the information that the terms and conditions of the allotment letter were unilaterally prepared by Prateek Realtors India Pvt. Ltd. without consulting the Informant and also these terms and conditions were not shown to the Informant at the time of booking. It was further alleged that Prateek Realtors has inserted such terms and conditions in the allotment letter which made exit impossible for the Informant. It was also stated that since Prateek Realtors had already received a considerable amount, it imposed highly abusive conditions through the allotment letter on the Informant and also compelled him to sign one-sided agreements relating to maintenance, car parking and electricity supply.

After perusal of material on record and hearing both the parties, CCI noted, “The Commission observes that as per the information available in the public domain there are many other major developers like Amrapali, Supertech, Unitech, 3C Company, Lotus Greens, Saha Infratech, ATS Greens, Jaypee Infratech, Eldeco etc. which are competing with OP 1 in the relevant market with projects of varying magnitudes and having comparable sizes and resources. The presence of so many players in the relevant market acts as a competitive constraint for OP 1 in enjoying a position of strength which would enable it to operate independently of market forces in the relevant market….Therefore, in view of the Commission, OP 1 cannot be considered as a dominant player in the relevant market.” While observing that, “no case of contravention of the provisions of Section 4 of the Act (which pertains to abuse of dominant position) is made out against OP 1 (Prateek Realtors),” the Commission closed the matter. [A.S.Sharma v. Prateek Realtors India Pvt. Ltd., [2016] CCI 21, decided on 01.06.2016]