Amarchand along with University College London (UCL) joined hands and held a Global Competition Law conference on 19^th November at the Taj in New Delhi, discussing   the implementation of competition law and policy. Amarchand Mangaldas is the exclusive Indian Legal Partner to UCL, in organizing the event and is known for advising high-profile clients on contentious matters relating to its competition law practice.

The opening key-note address was given by none other than Minister of Law and Justice, Veerappa Moily along with Minister of State for Corporate Affairs, Salman Khurshid.

On the conference:

Speaking to Bar & Bench Pallavi Shroff, Senior Partner Amarchand Mangaldas said, “When we were organizing this conference our purpose was to bring in the regulators, academicians, practitioners and economists all of them together and speak on different subjects and share their knowledge and experiences with Indian practitioners i.e. all of us. This is one conference which has had a very unique blend of speakers, that was one of my objectives and what has happened is amazing how different people have brought out different perspectives. A number of people asked, why did we have Europeans? I told them the real issue is to listen to them and get a know-how of their perspectives and how they dealt with cases, so when it’s your turn you will know how to deal. That’s how you learn your experiences, from other people”.

Salman Khurshid speaking about the conference said, “At this point of time, it is very useful to exchange views with people who have longer experience in competition law as we know it today. We have had MRTP experience, but the paradigm shift to competition law, and how we think about it is something which is very critical and therefore inputs from people who have experience of years or perhaps decades, particularly Americans and the Europeans is going to be very useful and I’m glad that they have come in such large numbers and this will be very rewarding for us”.

Competition law in India:

Dhanendra Kumar, Chairman Competition Commission of India spoke on the competition law in India vis-à-vis in foreign countries and said, “We are now being lauded by others, as having come-up to a fairly good level in the last one year. In fact the foreign participants and authorities on competition law have all said “That we have achieved in the last one year, what others have achieved in 8 to 10 years”. So I think we are reasonably there and there will always be room for improvement”.

Vijaya Sampath, General Counsel Bharti Airtel speaking on difficulties faced during global mergers said, “Firstly, there is multiplicity of regulators and multiplicity of regulations in each jurisdiction. By the end of it, you have 15 different regulators and regulations to deal with. That’s a difficult part to deal. Secondly, the scope is large and though it has no impact on the objective, i.e. appreciable adverse impact on competition in the relevant market in India. The objective is correct in 5 short phrases, but the scope is large. If you define the boundaries clearly, then it becomes easy to say whether applicable or not, but the boundaries are left very loose and moving all the time and are subject to interpretation. It then becomes difficult, because all the time I’m guessing, am I in or am I out or am I somewhere in-between”.

Naval Chopra, Principal Associate at Amarchand Mangaldas told us about the key changes he would like to see in the competition law in India and said, “The first key change I would like in relation to Sections 5 and 6 which deal with merger control. I think, the way the merger control provisions are currently drafted and even subsequent to the proposed amendments, one share acquired by Reliance Industries of Tata Sons would require merger notification. That sort of requirement is ridiculous. I’d like to see a control based test for merger control, while the Act currently does have a control based test under Section 5, it also has an acquisition based test and this acquisition test is almost identical to the merger control, so they are almost contrary provisions in the Act".

Naval added, "The second aspect is to competition law in general which I would like to see changed is not the timelines for merger control, is a not provision in relation to confidentiality, is not in relation to the set up of the competition commission either, but is in relation to the staffing. There is an urgent need of the commission to not double its staff, but increase its staff by five times. People in the private sector are more than willing to join the commission provided they know the commission i.e. the Director General’s office means business. The third thing I would like to change is that there is this tendency now which you will see in the amendment to the general regulations to set defined time limits for the functioning of various phases of investigation as well as the internal functioning of the commission. Competition law is extremely complex, data gathering in India is extremely difficult especially for the first few cases it is critical that the commission gets it right. Therefore, if they require more time than is necessary, they should take that liberty and use time. In Europe the Microsoft case for e.g. took six years from the time it was filed till the decision. You have a situation today in India where the Director General’s office takes four to six months to come out with a final report and that can under certain circumstances harm the development of the competition law in India”.

Regulator:

Stephan Melherbe, Chairman Genesis Analytics spoke about his role as an economic consultant in India and said, “Genesis is a group of economic consultants specializing in various forms of micro economic analysis, but probably our law is in the service of competition regulatory economics. It is essentially the same toolkit which deals with the essential structure which analysis the markets that are not perfectly competitive. We were the first firm in India to offer these services and we have been lucky enough to be involved in some of the large cases in India, some of the earliest cases so far in the competition regime. For e.g. we were involved in the National Stock Exchange case”.

Speaking on the Regulator, Stephan added that “the Regulator is gaining speed and they have appointed some very competent people at both in the commission and the Director Generals office. I think they will only become more effective, if they can achieve some kind of control over their own agenda and resources and whether it works at the moment because they are basically compelled to take cases that are referred to them by the CCI and not prioritize. That creates real dangers for the process because they do not have the resources to give that kind of attention, which every case deserves. So they have to prioritize and if they do so, they will find early wins and will in turn gain credibility and the quality of their analysis will improve and will be good for the process. Then the rest of the corporate sector will take the regulator seriously. I think its promising, but a steep learning curve and India should not go for second rate form of competition regulation. It has the intellectual resources, it has the market size and a serious legal profession and can go for a strong sophisticated system that is customized for Indian circumstances”.

Examining a Cartel in Australia:

Marcus Bezzi, Executive General Manager, Enforcement & Compliance Division, Australian Competition and Consumer Commission speaking on the key challenges they face while examining a cartel in Australia said, “The first challenge is, by its nature a cartel is covered and unless you have an entry into the cartel it’s very hard to point out what is going on. That happens in 90 percent of the cases we examine. We rely on our leniency program and on internal information which comes to us. Most of this information is from agencies which conduct brick-beating and bring this to our attention and we commence our investigation. Basically, the biggest challenge is initially to find out there is a cartel”.