We advise on whether or not there may have been cartel violations. We help carry out internal audits, often with the help of forensic experts, to collect and assess possible evidence of breach. We also advise on the application of the CCI leniency programme, and guide applicants through the complex leniency process.

We assist in filing complaints of cartels with the CCI. We also defend clients before the CCI in proceedings to determine whether there is a prima facie case of breach, in proceedings before the investigating DG, and in submissions to and hearings before the CCI itself. We also represent clients in appeals brought to the NCLAT.

Other Agreements

Enterprises need to be able to negotiate and enter into commercial agreements knowing that they will not be in breach of the competition rules.

We advise on the competition implications of joint venture agreements and horizontal cooperation agreements. We also advise trade associations on the permissible scope of information exchanges and how to draw the line between legitimate and anti-competitive behavior.

Vertical agreements are prohibited where they are shown to have an appreciable adverse effect on competition. We have experience in reviewing a wide range of vertical agreements, including supply, dealership, franchising and licensing agreements, advising on a wide range of issues including exclusivity, refusal to deal, resale price maintenance, agency and sub-contracting.

We advise on the interface between Competition Law and intellectual property rights. The Competition Act, 2002 (Competition Act) recognises that rights-holders are entitled to restrain infringements and impose reasonable conditions to protect rights. We also advise rights-holders and others on the permissible bounds of protection.

Abuse of Dominant Position

Unilateral behaviour can be attacked under the ‘abuse of dominance’ rules. Although dominance in itself is not prohibited, a dominant enterprise must not abuse its dominant position.

We advise whether enterprises may be regarded as dominant and, if so, whether they may have abused their dominant position by, for example, unfair or discriminatory pricing, below-cost selling, refusal to supply, tying, or leveraging a dominant position in one market in order to enter another market.

We act for complainants in abuse of dominance cases, drafting complaints and representing the complainant before the CCI. We also defend clients in CCI investigations. In addition, we have represented clients in appeals before the COMPAT (now the NCLAT) and the Supreme Court.

Merger Control

Mergers and acquisitions where the parties exceed specified asset/turnover thresholds must be notified to the CCI and may be implemented only when cleared by the CCI. The CCI may block a transaction where it will result in an appreciable adverse effect on competition, though concerns may be allayed by parties committing to behavioural or structural remedies, including divestments.

Where a transaction is notifiable, we help the parties prepare detailed filings, where necessary with the input of specialist economists. We address procedural and substantive issues before the CCI, including dealing with requests for information and negotiating on remedies.

Together with our Corporate team, we also provide input into transaction documentation, assist on the competition aspects of due diligence, and advise on ancillary restrictions (including the permissible scope and duration of non-compete clauses).

In the case of cross-border transactions, often involving multijurisdictional filings, we work closely with lawyers in other countries to ensure that the strategy and approach in India is aligned with the global transaction.

‘Gun-jumping’—or implementing a notified transaction before approval by the CCI—can result in heavy penalties. Delay in filing or not notifying at all, can also expose parties to penalties. We have represented a number of parties in penalty proceedings before the CCI.

Damages Actions

The NCLAT may award compensation for any loss or damage shown to have been suffered as a result of breach of the Competition Act. Individual as well as class actions may be brought only when it has been determined by the CCI, and on any appeal the NCLAT, that there has been a breach of the relevant provisions. We are acting for the defendants in the first two claims for damages brought under the Competition Act.

Due Process

We seek to ensure that our clients’ rights to due process are fully respected. Proceedings before the CCI must be conducted in accordance with the principles of natural justice. By invoking the writ jurisdiction of the courts in India, we have ensured that the investigative wing of the CCI does not arbitrarily expand its jurisdiction to conduct a fishing and roving inquiry and that the CCI does not exceed its jurisdiction vis-à-vis other sectoral regulators.

Compliance

Establishing a competition-compliant culture can help an enterprise to operate within the law and to avoid breaching the competition rules. This involves identifying the competition risks faced by the business, carrying out ‘audits’ to identify and cure irregularities, preparing compliance manuals, providing training at all levels, and reviewing and monitoring compliance programs.

Influencing Policy-Making

We have worked with the Ministry of Corporate Affairs in drafting the National Competition Policy, the CCI in finalising various rules and regulations, and leading industry bodies – CII, FICCI and ASSOCHAM – on competition advocacy in specific sectors or industries. We have worked closely with the committee to propose solutions for the timeline inconsistencies between the Insolvency and Bankruptcy Code and the Competition Act. Ms. Pallavi Shroff is currently part of the Competition Law Review Committee, which aims to amend the Competition Act.

Read Less-