The Competition Commission of India (CCI) has, for the sixth time since the introduction of the merger control regime in India, proposed amendments (Proposed Amendments) to the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (Combination Regulations).

The Combination Regulations are the principal regulations governing the merger notification process in India.[1] Some of the changes proposed by the CCI seem to be aimed at addressing issues that have arisen in the implementation of the merger control regime over the past couple of years whereas others seek to incorporate procedures that are already being followed by the CCI in practice. The changes, currently in draft form while the CCI seeks stakeholder views , are highlighted in brief below. Continue Reading CCI Proposes Amendments to Combination Regulations

The Competition Commission of India (CCI), in its order dated 11 July 2018[1], has awarded a 100 per cent reduction in penalty to leniency applicants Globecast India Private Limited (GI) and Globecast Asia Private Limited (GA) (collectively referred to as Globecast), along with their respective responsible office-bearers. It has also awarded a 30 per cent reduction to Essel Shyam Communication Limited (now Planetcast Media Services Limited) (ESCL) along with their responsible officer bearers, in a cartel case in the broadcasting services industry.

This is the latest and the fourth such order of the CCI granting reduction of penalty to applicant(s) under Section 46 of the Competition Act, 2002 (Act) and the Competition Commission of India (Lesser Penalty) Regulations, 2009 (Leniency Regulations).

Continue Reading Fourth Order in Less than Two Years: The CCI’s Leniency Regime Gathers Momentum

Can an enterprise agree with its competitors not to hire each other’s employees without violating antitrust laws? Like any other practice of an enterprise, hiring practices may also violate antitrust laws. From an antitrust perspective, enterprises competing against each other to hire or retain employees are competitors in the employment marketplace irrespective of whether they sell the same product or provide the same services. Therefore, any agreement between employers, expressly or implicitly, agreeing not to hire each other’s employees, even if done to reduce costs, may violate antitrust laws.

With increasing protectionist barriers around the globe, companies are rushing to find new opportunities to expand and grow. As a result, competition among companies is unavoidable. This competition is not limited to goods or services offered by these companies and may extend to the hiring of employees, especially in industries where skilled talent is required. Companies have a collective interest to eliminate this competition by forming a no-poaching agreement amongst themselves, which restricts hiring each other’s employees. However, no-poaching agreements may be in violation of antitrust laws as they impose restrictions on employees to pursue other jobs, as well as limiting their remuneration.

The Hong Kong Competition Commission (HKCC) has highlighted this issue by publishing an Advisory Bulletin: ‘Competition concerns regarding certain practices in employment marketplace in relating to hiring and terms and conditions of employment’. Before reporting some of the key findings and recommendations of the HKCC, we map the competition law developments in this area from around the globe.*

Continue Reading Non-solicitation in the Context of Competition and Labour Laws

* This piece was first published in the February 2018 issue of the Practical Lawyer (2018) PL (Comp. L) Feb 75


The boom in the technology and internet arenas has globally accelerated the growth of the digital economy. This has significantly aided the mechanism of collecting, processing and commercially exploiting the data in the hands of large corporations and even start-ups. Commonly referred to as ‘big data’, the concept refers to large volumes of a variety of data which is collected at high velocity and is then processed by computing softwares to produce unique datasets which has significant commercial value.[1] While the collection and use of personal data falls under the domain of data protection laws, a question that is now being examined by several competition law regulators is whether the use of big data can impact competition in the markets.

Before we delve into this question, it is pertinent to consider the advantages and efficiencies which result from the commercial exploitation of big data. Consider the modus operandi of any frequently used search engine. It would use self-learning computing algorithms which would observe, record and analyze search terms keyed in by the users, the websites ‘clicked on’ and combine it with data collected from its other applications and services such as e-mail or data processing services to create detailed user profiles. It would then use, and maybe even sell, these unique and individualized information assets to various online advertisers and retailers for targeted advertising.[2] Consider also the personalized recommendations of products and services that a user receives on various e-commerce platforms or on social networking websites based on the purchasing history, the keywords typed, and the general and personal information provided to these websites. Therefore, by closely tracking and analyzing the users’ needs and studying the consumer demand pattern, big data immensely assists in improving the quality of goods and services and their targeted advertising. It also improves the decision-making on the supply side by improving market predictions and the operational efficiency of manufacturers.[3]

Continue Reading Big Data: Emerging Concerns under Competition Law

* This piece was first published in the January 2018 issue of the Practical Lawyer (2018) PL (Comp. L) Jan 75


With the USD 130 billion merger between global agrochemical giants – Dow Chemicals and E. I. du Pont de Nemours and Company (DuPont) being granted a green chit by the European Commission (EC) and the Competition Commission of India (CCI), the significance of innovation in merger assessment has witnessed a renewed focus. The extent and role of innovation in the concerned market is one of the factors that antitrust regulators are required to consider while evaluating a proposed transaction. Ordinarily, this exercise is undertaken to study the impact of the transaction on future innovation and any competitive harm which may result from reduction in the incentives to innovate as also the pro-competitive outcomes emanating from operational synergies which enhance innovation.[1]

In the Dow/DuPont merger,[2] the relevance of innovation was discussed at length by the EC which observed that the merger would not only significantly impede competition in the pesticides and petrochemical industries, at a global level, but would also reduce future innovation in the global pesticides industry. It was noted that the development of effective and environment friendly pesticides required large scale investments and continuous research and development (R&D) and globally, only five players were engaged in R&D in the field of pesticides.[3] The Dow/DuPont merger therefore, would further consolidate market power in an already highly concentrated industry with significant entry barriers and would substantially reduce the parties’ incentives to innovate in the pesticides sector.

Continue Reading Towards a New Jurisprudence: Role of Innovation in Merger Control

* This piece was first published in the December 2017 issue of the Practical Lawyer (2017) PL (Comp. L) Dec 76


This century is continually being marked by the convergence of this goliath world into a global village. While this phenomenon is attributable to a number of factors, inter-operability of technology and adoption of common standards have acted as important catalysts in this process. As such, this convergence perforce requires that common standards are available on fair terms to all. However, a number of components of these essential standards are patented, i.e., are standard essential patents (SEPs), thereby implying the exclusive right of the patentee to use and exploit the SEP. It is at this juncture that a complex yet interesting legal wrestle between the competition law and intellectual property rights (IPR) regimes emerges.

In essence, SEPs encompass those patented technologies which have become essential to a standard. From an antitrust perspective, an SEP holder enjoys substantial, almost monopolizing market power due to lack of substitute alternative technologies. The SEP holder is susceptible to engaging in abusive practices, such as refusal to license the SEP to other manufacturers, or charging exorbitant royalties. In order to balance this one-sided bargaining power, standard setting organizations (SSOs) across all jurisdictions obligate SEP holders to license the their intellectual property on fair reasonable and non-discriminatory (FRAND) terms. However, the multi-jurisdictional decisional practice elucidates that mere affirmation by SEP holders to SSOs does not preclude them from engaging in abusive practices, thereby necessitating an interaction between competition laws and IPR.

Continue Reading Standard Essential Patents – The Irony of Standardization

Given the multifaceted economic and legal considerations, fair and effective enforcement of competition law is a complex task. It is rendered all the more daunting with the added requirement for the optimal level of competition law enforcement.

Optimal enforcement is arguably more important in competition law proceedings than in other areas of law enforcement because inadvertent under- and over-enforcement may actually end up harming competition itself. For example, if a competition authority attempts to over-enforce, it can actually make conduct illegal that was otherwise legal and, thus, prevent an enterprise from competing on merits. The result would be counter-productive to the objectives of competition law (by harming level of competition in the markets).

Given this debate, the story of competition law has been the story of competition between tests and concepts that are either presumption or form based (thus, simpler and providing legal certainty) and tests that are effects based – i.e. using economic/ quantitative techniques and are, thus, more accurate (and more conducive to the idea of optimal enforcement).

Recently, although the debate in this regard has surrounded the applicability of the effects-based test to prohibite abuse of dominance, companies need to be able to formulate policies that re-assure them of their legal certainty – stakeholders, therefore, await fast-track consensus.

Continue Reading Abuse of Dominance: Effect over Form?

In an interesting development, the Supreme Court of India (Supreme Court) has overturned the Competition Appellate Tribunal’s (COMPAT) order and confirmed the Competition Commission of India’s (CCI) order confirming abuse of dominance by multi-system operators (MSOs).

The Supreme Court not only interpreted the provisions of section 4 of the Competition Act, 2002 (Competition Act) and differed with COMPAT’s understanding; but also delivered a judgment in a sector that is regulated by the Telecom Regulatory Authority of India (TRAI). The judgment, though not directly dealing with the issue, affirms the exclusive jurisdiction of the CCI to deal with anti-competitive conduct even in regulated sectors with special sectoral regulators. Most interestingly, in another case before the Supreme Court, the TRAI is contesting that it is the sole regulator in the telecom sector including competition law related issues and CCI has no jurisdiction.

Additionally, the judgment also advances the penalty jurisprudence in competition law cases by setting aside CCI’s imposition of penalties, due to certain mitigating factors despite upholding its conclusion of abuse of dominance.

Continue Reading Supreme Court Confirms Abuse of Dominance by Multi System Operators

In a recently released order, the Competition Commission of India (CCI) has imposed a token penalty of INR 5 lakhs (approx. USD 7800) on ITC Limited (ITC) for its failure to notify a combination. The combination relates to ITC’s acquisition of the trademarks “Savlon” and “Shower to Shower”, along with other related assets, from Johnson & Johnson by way of two separate asset purchase agreements entered into on 12 February 2015.

In its order, the CCI has held that trademarks are assets for the purposes of the Competition Act, 2002 (as amended) (Competition Act). Further, the order also re-emphasises the position that the Indian merger control regime relates to not only an acquisition of one or more enterprises but also acquisition of control, shares, voting rights or assets of another enterprise. In the event the jurisdictional thresholds prescribed under Section 5 of the Act are met, such an acquisition requires prior notification to, and approval from, the CCI.

Continue Reading The CCI Reinforces Trademarks are Assets