Avirup Bose, a graduate of the National University of Juridical Sciences, has become the first Indian to be represent his research at the Next Generation of Antitrust Scholars Conference 2016..The conference, co-sponsored by the American Bar Association and NYU School of Law, will be held this month at NYU School of Law..In this interview with Bar & Bench, Avirup discusses his research, the Competition Commission of India, and how Indian law firms can adopt to the changing merger control regime..(Edited excerpts).Bar & Bench: Since your column on class action law suits last year, have you seen the COMPAT devise procedures to correctly identify genuine parties to a class action claim?.Avirup Bose: The COMPAT has not yet devised any procedures to identify genuine class action parties. This is mainly because, to my knowledge, no class-actions have been initiated before the COMPAT. Although, a May 2014 Economic Times article reported that the resident welfare associations of the three affected DLF projects in Gurgaon would be filing such compensation claims before the COMPAT, no further developments have since then been reported..The main problem is with our Advocates Act, which prevents lawyers to collect their fees as a part of the damages awarded. As of now class action litigants have to themselves fund the lawyer fees, search costs for identifying the class members and other incidental expenses without any guarantee of legal success. This definitely disincentives class action litigants from filing such claims before the COMPAT..B&B: You have also written on the sea change at the CCI when it comes to merger control. How do you see Indian law firms adapting to this?.AB: Merger control is one of the areas where CCI has received more praise from the industry than the agency’s work in the area of cartels or abuse of dominance..Having said that, lawyers routinely complain about CCI’s penchant for ‘stopping the clock’ to seek more information. Under the scheme of India’s merger control regulations, CCI is required to form a prima facie opinion on whether a combination causes or is likely to cause an AAEC within the relevant market in India within a period of 30 calendar days from the date of notification. However, if CCI feels that additional information is required to form such prima facie opinion, it could seek so from the parties. CCI “stops the clock” on the 30 day period, until the additional information is provided. Many suspect that CCI uses it as a mechanism to buy more time rather than genuine concern to collect more data..CCI’s inconsistent approach in determining when a combination is required to be notified has also created some problems for the Indian antitrust bar. In Tesco Overseas Investments Limited/Trent Hypermarket Limited, CCI held that a notification to an Indian statutory authority for governmental approvals, even in the absence of definitive binding agreements, would trigger a notification requirement under CCI’s 2011 Combination Regulations and imposed a penalty of 30 million rupees..Given that many international firms require communicating with several government departments/statutory bodies, such communications could be considered by CCI to constitute ‘trigger events’ even when there is no underlying binding acquisition agreement..CCI has shown some maturity in dealing with the Holcim-Lafarge and Sun-Ranbaxy deals although as CCI’s Chairperson, Mr. Ashok Chawla himself admitted a few days back that, in the coming days, complex M&As will stress the capabilities of CCI. Chairperson Chawla’s comments are very true. CCI’s internal staff mostly consists of officers on deputation from other departments of the Government, many of whom do not have the adequate training in analysing the antitrust effects of complex M&A deals..As the cases mature from the ordinary bric-and-mortar ones to those of high-tech and e-commerce, CCI will have to quickly build up its internal capabilities. A task that remains mainly a work-in-progress..The Indian antitrust bar also needs to ready itself to work with CCI and help build the agency’s institutional capabilities..B&B: Could you tell us a bit about the findings that will be critiqued at the conference?.AB: My research mainly focusses on the institutional and behavioural dimensions of the Indian antitrust enforcement architecture which prevents it from approaching antitrust enforcement from a neo-liberal economic approach..CCI, which became fully functional in May 2009, is India’s youngest and the only cross-sector regulator. More than a dozen sectors of the economy – from automobiles, pharmaceuticals, health services, cement, steel, telecommunications, internet, banking has come under the scrutiny of the aggressive market regulator..Yet Indian antitrust practitioners and scholars have routinely questioned the legal integrity and the intellectual rigour of CCI’s antitrust rulings – especially its lack to espouse an economic efficiency orientation in its antitrust reasoning (See this column)..Why has the CCI, despite facing continuous criticism, not being able to adopt a neo-liberal orientation towards market efficiency? CCI’s decisions often espouses what antitrust scholars refer to as ‘social goals’ of antitrust..My research reveals that India’s antitrust architecture suffers from what developmental economists call “capability traps”, where developing countries like India, mimic the forms of neo-liberal western institutions without building the requisite functionalities for such institutions to work effectively. Nations are required to conduct an internal evaluation, sensitive to their local conditions to embed such structures into their own local legal and bureaucratic culture. Without such embedding the institutions yield results which are not conducive to the effects for which they were created. My research adopts an institutional design perspective in studying CCI’s enforcement of Indian antitrust law to explain the disparity between the purpose of the Competition Act and its bureaucratic enforcement.
Avirup Bose, a graduate of the National University of Juridical Sciences, has become the first Indian to be represent his research at the Next Generation of Antitrust Scholars Conference 2016..The conference, co-sponsored by the American Bar Association and NYU School of Law, will be held this month at NYU School of Law..In this interview with Bar & Bench, Avirup discusses his research, the Competition Commission of India, and how Indian law firms can adopt to the changing merger control regime..(Edited excerpts).Bar & Bench: Since your column on class action law suits last year, have you seen the COMPAT devise procedures to correctly identify genuine parties to a class action claim?.Avirup Bose: The COMPAT has not yet devised any procedures to identify genuine class action parties. This is mainly because, to my knowledge, no class-actions have been initiated before the COMPAT. Although, a May 2014 Economic Times article reported that the resident welfare associations of the three affected DLF projects in Gurgaon would be filing such compensation claims before the COMPAT, no further developments have since then been reported..The main problem is with our Advocates Act, which prevents lawyers to collect their fees as a part of the damages awarded. As of now class action litigants have to themselves fund the lawyer fees, search costs for identifying the class members and other incidental expenses without any guarantee of legal success. This definitely disincentives class action litigants from filing such claims before the COMPAT..B&B: You have also written on the sea change at the CCI when it comes to merger control. How do you see Indian law firms adapting to this?.AB: Merger control is one of the areas where CCI has received more praise from the industry than the agency’s work in the area of cartels or abuse of dominance..Having said that, lawyers routinely complain about CCI’s penchant for ‘stopping the clock’ to seek more information. Under the scheme of India’s merger control regulations, CCI is required to form a prima facie opinion on whether a combination causes or is likely to cause an AAEC within the relevant market in India within a period of 30 calendar days from the date of notification. However, if CCI feels that additional information is required to form such prima facie opinion, it could seek so from the parties. CCI “stops the clock” on the 30 day period, until the additional information is provided. Many suspect that CCI uses it as a mechanism to buy more time rather than genuine concern to collect more data..CCI’s inconsistent approach in determining when a combination is required to be notified has also created some problems for the Indian antitrust bar. In Tesco Overseas Investments Limited/Trent Hypermarket Limited, CCI held that a notification to an Indian statutory authority for governmental approvals, even in the absence of definitive binding agreements, would trigger a notification requirement under CCI’s 2011 Combination Regulations and imposed a penalty of 30 million rupees..Given that many international firms require communicating with several government departments/statutory bodies, such communications could be considered by CCI to constitute ‘trigger events’ even when there is no underlying binding acquisition agreement..CCI has shown some maturity in dealing with the Holcim-Lafarge and Sun-Ranbaxy deals although as CCI’s Chairperson, Mr. Ashok Chawla himself admitted a few days back that, in the coming days, complex M&As will stress the capabilities of CCI. Chairperson Chawla’s comments are very true. CCI’s internal staff mostly consists of officers on deputation from other departments of the Government, many of whom do not have the adequate training in analysing the antitrust effects of complex M&A deals..As the cases mature from the ordinary bric-and-mortar ones to those of high-tech and e-commerce, CCI will have to quickly build up its internal capabilities. A task that remains mainly a work-in-progress..The Indian antitrust bar also needs to ready itself to work with CCI and help build the agency’s institutional capabilities..B&B: Could you tell us a bit about the findings that will be critiqued at the conference?.AB: My research mainly focusses on the institutional and behavioural dimensions of the Indian antitrust enforcement architecture which prevents it from approaching antitrust enforcement from a neo-liberal economic approach..CCI, which became fully functional in May 2009, is India’s youngest and the only cross-sector regulator. More than a dozen sectors of the economy – from automobiles, pharmaceuticals, health services, cement, steel, telecommunications, internet, banking has come under the scrutiny of the aggressive market regulator..Yet Indian antitrust practitioners and scholars have routinely questioned the legal integrity and the intellectual rigour of CCI’s antitrust rulings – especially its lack to espouse an economic efficiency orientation in its antitrust reasoning (See this column)..Why has the CCI, despite facing continuous criticism, not being able to adopt a neo-liberal orientation towards market efficiency? CCI’s decisions often espouses what antitrust scholars refer to as ‘social goals’ of antitrust..My research reveals that India’s antitrust architecture suffers from what developmental economists call “capability traps”, where developing countries like India, mimic the forms of neo-liberal western institutions without building the requisite functionalities for such institutions to work effectively. Nations are required to conduct an internal evaluation, sensitive to their local conditions to embed such structures into their own local legal and bureaucratic culture. Without such embedding the institutions yield results which are not conducive to the effects for which they were created. My research adopts an institutional design perspective in studying CCI’s enforcement of Indian antitrust law to explain the disparity between the purpose of the Competition Act and its bureaucratic enforcement.