Competition Law in India - Nishith Desai Associates

1 Competition Law in IndiaA Report on Jurisprudential Trends June 2015 MUMBAI SILICON VALLEY BANGALORE SINGAPORE MUMBAI BKC NEW DELHI MUNICH Nishith Desai Associates 2015 Nishith Desai Associates 2015 A Report on Jurisprudential Trends Competition Law in IndiaA REPORT ON JURISPRUDENTIAL TRENDS May 2015 Prashant Prakhar Niyati Gandhi Payel Chatterjee Simone Reis Ananth Pratibha JainFor Private Circulation OnlyNishith Desai Associates is the copyright holder of this report. No reader should act on the basis of any statement contained herein without seeking professional advice.

2 The firm expressly disclaims all and any liability to any person who has read this document, or any extract thereof, with respect to anything or consequences of anything done, or omitted to be done, by any such person in reliance upon the content of this any help or assistance please email us on or visit us at LAW IN India Nishith Desai Associates 2015 Provided upon request onlyContentsGLOSSARY 01 INTRODUCTION 031.

3 TREND ANALYSIS 042. EVOLUTION OF Competition LAW IN India 103. THE MRTP ACT: PREDECESSOR OF THE Competition ACT, 2002 114. INDIAN Competition LAW FRAMEWORK 155. ANTI-COMPETITIVE AGREEMENTS 216. ABUSE OF DOMINANCE 257.

4 JURISPRUDENTIAL TRENDS SECTION 3 288. JURISPRUDENTIAL TRENDS SECTION 4 359. INTERNATIONAL TRENDS IN Competition LAW ENFORCEMENT 41 CONCLUSION 47 ANNEXURE ACASES DISCUSSED IN FIRST REPORT 48 ANNEXURE B-1 ORDERS UNDER SECTION 26 (1) OF THE ACT DIRECTING INVESTIGATION BY DG 60 ANNEXURE B-2 ORDERS PASSED UNDER SECTION 26 (2)

5 OF THE ACT BY THE commission DISMISSING THE CASE 61 ANNEXURE B-3 ORDERS UNDER SECTION 26 (6) OF THE ACT DIRECTING FURTHER INVESTIGATION 64 ANNEXURE B-4 ORDERS UNDER SECTION 27 OF THE ACT HOLDING CONDUCT OF OPPOSITE PARTY IN VIOLATION OF THE ACT 65 ANNEXURE CORDERS PASSED BY DELHI HIGH COURT 671 Nishith Desai Associates 2015 Competition Law in IndiaA Report on Jurisprudential Trends

6 GlossaryAbbreviationFull Form AAEC Appreciable Adverse Effect on Competition Act or Competition Act The Competition Act, 2002 CD Currency Derivative CCI Competition commission of India COMPAT Competition Appellate Tribunal DG Director General of Investigation Directors Directors of the Company DoJ Department of Justice Evidence Act Indian Evidence Act, 1872 FRAND Fair, Reasonable And Non-Discriminatory F&O Futures and Options FTC Federal Trade commission HMT Hypothetical Monopolist Test IDRA Industrial (Department and Regulation) Act of 1951 INR or Rs.

7 Indian National Rupee IP Intellectual Property IPR Intellectual Property Right JFTC Japanese Fair Trade commission MCA Ministry of Corporate Affairs MCX MCX Stock Exchange Ltd. MIC Monopoly Inquiry commission MLATs Mutual Legal Assistance Treaties MRTP Act Monopoly and Restrictive Trade Practices Act, 1969 MRTPC Monopoly and restrictive Trade Practices commission MTP Monopolistic Trade Practices NSE National Stock Exchange of India Ltd OECD Organization of Economic Cooperation and Development OP Opposite Party OTC Over the Counter RBI Reserve Bank of India RTP Restrictive Trade Practices SEBI Security Exchange Board of India SEP Standard Essential Patents SOE State Owned Enterprise SSNIP Small but Significant and Non-transitory Increase in Price SSO Standard Setting Organizations Supreme Court The Honorable Supreme

8 Court of India TFEU Treaty on the Functioning of the European Union2 Nishith Desai Associates 2015 Provided upon request only UTP Unfair Trade Practices Coal India Coal India Limited Competition Bill Competition (Amendment) Bill of 2012 Constitution Constitution of India , 1950 CEA Central Electricity Authority EU European Union First Report Competition Law in India : Jurisprudential Trends and the Way Forward, Nishith Desai Associates , April 2013 FSA Fuel Supply AgreementPNGRBP etroleum & Natural Gas Regulatory Board RINL Rashtriya Ispat Nigam Limited SAIL Steel Authority of India Limited TRAI Telecom Regulatory Authority of India US United States of AmericaGlossary3 Nishith Desai Associates 2015 Competition Law in IndiaA Report on Jurisprudential Trends The Indian Competition law regime has grown considerably in the last six years ever since the Act became operational in 2009.

9 Prior to the operationalization of the Competition Act in May 2009, MRTP Act was the operational law that regulated certain aspects of Report discusses the legislative history of the Competition Act and analyzes salient jurisprudential trends in Competition law enforcement in India since the First Report. This Report is divided into nine parts. Part I of this report deals with the trend analysis of cases brought before the commission . Part II of this Report deals with the evolutionary history of Competition law in India .

10 Part III focuses on MRTP Act, Part IV of this report focuses on the Competition law framework envisaged under the Competition Act. Part V and Part VI of this report discuss anticompetitive agreements and abuse of dominance, respectively. Part VII and Part VIII of this report discuss trends in the enforcement of the Competition Act till date and relevant decisions/orders passed by the commission and COMPAT. Part IX of this report summarizes some of the international trends in Competition law jurisprudence. This Report also includes an annexure that provides illustrative details of orders passed by CCI since the First Report, up to May 2015 in respect of anti-competitive agreements and abuse of dominance ( , orders in relation to matters under Section 3 and Section 4 of the Act).