Competition Law/Antitrust & Merger Control
The Indian Competition Act, 2002 is an economic legislation which has established the Competition Commission of India (CCI) to prevent practices harming competition, to promote and sustain competition in markets, to protect the interests of consumers, and to ensure freedom of trade carried on by other participants in markets. The Competition Act, 2002 (as recently amended on 11 April 2023) follows the philosophy of modern competition laws and aims at fostering competition and at protecting Indian markets against anti-competitive agreements, abuse of dominance, and mergers, acquisitions, and corporate transactions. The CCI prohibits anti-competitive practices and/or agreements by and/or amongst enterprises, abuse of dominant position by enterprises, and regulates combinations (mergers, amalgamations, and acquisitions) to ensure that there is no adverse effect on competition in markets in India.
Effective compliance under the Indian Competition/Anti-Trust Law is not only challenging for dominant and Multi-national Corporations (MNCs) but also for Startups and consumers in order to protect their rights in any market in India. We assist our clients operating in Real Estate, Automotive, Power, Finance, Pharma, Steel, Textiles, Aerospace, Media, FMCG, IT industries and sectors in strategic advisory and representations before the Director General (DG) Office and Competition Commission of India (CCI) in all aspects of the Indian Competition Act, including the National Company Law Appellate Tribunal (NCLAT) and Hon’ble Supreme Court.
Filing of information against any enterprise for anti-competitive horizontal/vertical agreements, cartels, bid-rigging, Non-compete agreements and abuse of dominance in the Competition Commission of India (CCI) has become an important aspect for any enterprise to exist in the market. The term ‘Agreement’ under the Competition Act covers written/unwritten arrangements, understanding or concerted action between enterprises operating in India. Information can also be filed against any Dominant enterprise that has a position of strength which enables such an enterprise to operate independently of competitive force in the market or to affect its competitors or consumers in its favour.
We assist in filing mergers & acquisitions approval (Form I & II) with the Competition Commission of India and structuring entire transactions on Mergers, Demergers, Acquisitions, Takeovers and Corporate Restructuring. We develop strategies for investments in India and render expert advice to facilitating Foreign Investment, joint ventures, and technology transfers with legal due diligence and regulatory compliance and approval from the Securities and Exchange Board of India (SEBI), Reserve Bank of India (RBI), DPIIT, CCI and other regulators. We have helped in complex and cross-border corporate transactions with overseas direct investments.
Anti-competitive agreements under competition law are broadly classified into two categories – Horizontal Agreements and Vertical Agreements. Horizontal Agreements are between enterprises, persons, associations, etc. engaged in identical or similar trade of goods or provision of services. Horizontal Agreements include fixing prices, limiting production and/or supply; allocating markets; bid rigging or collusive bidding. Horizontal agreements are presumed to have an appreciable adverse effect on competition under Section 3 of the Act and it is on the impugned enterprise to prove otherwise. Vertical agreements are amongst enterprises or persons at different stages or levels of the production chain in different markets. Vertical Agreements include • tie-in arrangements, exclusive supply/distribution arrangements, refusal to deal; and, resale price maintenance. Imposition of reasonable conditions as necessary for the protection of intellectual Property Rights (IPR) listed under Section 3(5) is generally not to be treated as violative of the Act. They are, however, subject to scrutiny by the Commission to decide whether such conditions are reasonable and necessary to protect IPR.
Appeal against the order of the Competition Commission of India in the National Company Law Appellate Tribunal and Supreme Court is one important aspect of any enterprise which has wrongly been penalized by the CCI. During any appeal, any enterprise can file Interlocutory Applications to add themselves as parties in the trial to represent their concerns in the appeal.
We assist enterprises (Corporates, and PSUs) in dawn raid investigation and compliance to effectively navigate the risks of unnecessary competition scrutiny by the Director General Office of the Competition Commission of India. We assist in compliance, Training, Manuals, and review agreements under the scope of the Competition law in India to match the rapid economic development happening in India.
The dominant position of any enterprise in the relevant market itself is not prohibited; however, if the enterprise having a dominant position in the relevant market abuses its dominance then the same stands prohibited. Therefore, it is important for any dominant enterprise operating in India to comply with the provisions of the Competition Act. Abuse of a dominant position impedes fair competition between firms exploits consumers and makes it difficult for the other players in the market to compete with the dominant undertaking. Abuse of dominant position covers: imposing unfair conditions or price, including predatory pricing; limiting production/market or technical or scientific development denying market access, concluding contracts subject to conditions, having no nexus with such contracts; and using a dominant position in one relevant market to gain advantages in another relevant market.
Market studies are a widely used tool to develop a better understanding of competitive conditions within one or more sectors. It helps examine how particular markets work, the regulatory architecture governing a sector and its implications for competition, and gauge patterns of consumer and business behaviour. It leads to recommendations for governance, sector regulators, and business associations.