Photo of Rahul Goel

Partner in the Competition Practice at the Delhi Office of Cyril Amarchand Mangaldas. Rahul focuses on competition law, trade law and technology as well as media & telecommunication. He routinely advises on issues relating to behavioural/ enforcement matters, merger control provisions as well as anti-dumping, international trade and WTO laws and the Information Technology Act and its rules. He can be reached at rahul.goel@cyrilshroff.com

 

The nature of regulations, enforcement authorities and their ability to enforce regulations has been known to have a profound effect on innovation.

As the internet transforms industrial processes, regulators across sectors and geographies are trying to achieve the right balance on regulating innovation – enough so that it is under effective control yet not stifled from growing.

In a recent policy brief on behalf of the Penn Wharton Public Policy Initiative, Kevin Werbach, a professor at the Wharton School of the University of Pennsylvania, advises policy makers and regulators that the next stage of digital advancement will lead to a phenomenon that he calls “Internet of the World” – an intersection of the on-demand/sharing economy, the Internet of Things and Big Data. He suggests that this stage would represent “the final destruction of artificial divisions between real and virtual”.

As we approach this stage at a rapid pace, law-making and regulation needs to evolve accordingly. Laws need to reflect the rapidly blurring boundaries between the physical and digital so that regulators are suitably equipped to accomplish their tasks across all mediums and sectors.

Continue Reading Emerging Trends in Market Power: An Update

The enforcement of any new law can throw many issues. These become especially prominent in the case of a law that is brought into force in phases – i.e. different provisions are made operational at different times.

The Competition Act, 2002 (Competition Act) is one such legislation. Though the statute was passed in 2003, its phase-wise notification extended up till 2011. More importantly, the sections/ provisions relating to anti-competitive agreements were notified[1] to come into force from 20 May 2009. The application of a provision/ section after an event is one such prickly issue.

The Supreme Court of India (SC) has examined the issue in the context of the Competition Act in the recent decision of Excel Crop Care Limited v Competition Commission of India & Anr[2].

Continue Reading An Antitrust Time Machine: Application of Competition Act to Pre-Enactment Conduct

Non-compete clauses form an important part of various corporate transactions. They provide purchasers some protection against competition from sellers so that they may benefit by obtaining the full value of the transferred assets (both tangible and intangible). Such non-compete clauses can be necessary for purchasers to gain the loyalty of customers and to fully utilise the know-how acquired. In the case of Joint Ventures (JV), such clauses can be necessary to ensure that the JV partners are committed to the JV and do not, independently, end up competing with it.

However, these clauses, as they are essentially agreements not to compete, can give rise to competition law concerns and lead to scrutiny by the Competition Commission of India (CCI).

Continue Reading Non-Compete Clauses: CCI Issues Guidance Note

As soon as the details were disclosed, the Finance Bill, 2017 raised eye-brows[1] . Some noted that:

  • To minimise the number of tribunals, the Finance Bill, 2017 sought to merge eight tribunals with other tribunals and amended provisions relating to the structuring and re-organization of such tribunals.
  • The above measures were sought to be taken through a money bill, which is only supposed to contain provisions for imposition of taxes and withdrawal of money from the State Treasury.

Continue Reading Spanner in the Works? Judicial Challenge to the Finance Act, 2017

Clear skies emerge as competition authorities across jurisdictions become more sure-footed in dealing with the ever growing (new) digital economy.

The Competition Commission of India’s (CCI) confidence in dealing with apps and technologies is reflected in its relevant market[1] determination in cases concerning instant messaging apps.

On 1 June, 2017, the CCI passed an order[2] under Section 26(2) of the Competition Act, 2002 (Competition Act), holding that the case did not warrant an inquiry into alleged abuse of dominant position by WhatsApp Inc (WhatsApp).

Continue Reading Where Do They Belong? Relevant Market Determination for Instant Communication Apps

The Competition Commission of India’s (CCI) prima facie order under section 26(1) of the Competition Act, 2002 (Competition Act) allows the Director General (DG) to investigate alleged violations of the Competition Act. Parties under investigation, however, often allege that the DG investigations go beyond the scope of the order passed by the CCI.

Various High Courts are considering issues of this nature under their writ jurisdiction. However, the recent Hon’ble Supreme Court of India’s (SC) decision in Excel Crop Care Limited v. Competition Commission of India & Another (Excel Case)[1] may provide an important perspective to the existing debate.

Continue Reading How far is too far? The Supreme Court’s View on the Scope of Director General Investigations

On 8 May, 2017, in a landmark judgment, the Hon’ble Supreme Court (bench consisting of Hon’ble Mr. Justice A.K. Sikri and Hon’ble Mr. Justice N.V. Ramana) upheld the principle of “relevant turnover” for determination of penalties in competition law contraventions; and settled a critical issue in India’s antitrust jurisprudence, which was heavily debated amongst all stakeholders for over five years.

Background

The above ruling arises out of a proceeding involving an alleged contravention of Section 3(3) of the Competition Act, 2002 (Competition Act) in the public procurement of Aluminium Phosphide (ALP) Tablets by the Food Corporation of India (FCI). The Competition Commission of India (CCI) found a violation of Section 3(3) of the Competition Act and imposed a penalty at the rate of 9% of the total turnover of the concerned ALP manufacturers – namely, Excel Corp Care Limited (Excel), United Phosphorus Limited (UPL) and Sandhya Organic Chemicals Private Limited (Sandhya).

Continue Reading Supreme Court Limits CCI’s Penalty Powers: “Relevant Turnover” Upheld