Evolution of Governing Framework
Pre-Independence Laws:
PRIVATE CAPITAL
Constitution (1950);
IDR Act (1951); IPR (1956);
MRTP Act, 1969; State Ownership
Reserved Lists & Licensing
Post 1991
PRIVATE CAPITAL & PPP
• Economic Regulation
• Private Ownership
• Reasonable return on investt.
• Economic regulation
• Level playing field
• Single window approach:
FIPB, NHAI Act, TRAI Act,
Electricity Act, SEZ Act, etc
1
MRTP Act vs Competition Act
MRTP Act
1.
2.
3.
4.
5.
6.
7.
Adjudicatory body
Deeming provisions
Pre-economic analysis a discretion
Mergers are not within the domain
Size of enterprises is frowned upon
Complainants are limited
International co-operation and
Effects doctrine are not available
8. Law could not be promoted
9. Public interest
10. Others [Role of DG, absence of
Leniency programme etc.]
Competition Act (CA)
1.
2.
3.
Market Regulator
Rule of reason
Pre-economic analysis is
mandatory
4. M&A is one of the important
functions
5. Size is not bad but its abuse is
6. Except Defence, Space & Currency
– all commercial activities are
within the ambit of the Law
7. They are available
8. Statutory advocacy role
9. More filters
10. Others [enhanced role of DG,
availability of Leniency etc.]
2
Abuse of Dominance
RULE OF REASON … TARGET ABUSE, NOT DOMINANCE
 Dominant position
 Ability to operate independent of competitive forces
prevailing in the relevant market
 Affect its competitor/consumers/relevant market
 Abuse of dominant position
 Imposing unfair or discriminatory conditions
 Predatory pricing, limit production, deny market
access
 Contracts contingent on supplementary obligation
 Use dominance in one market to move into or protect
other relevant market (product & geography)
3
Dominance
FACTORS IN THE RELEVANT MARKET
 Market share of the enterprise
 Size or Resources of enterprise
 Size & importance of competitors
 Economic power of enterprise
 Vertical integration of enterprises or their network




Dependence of consumers
Market structure & size of market
Entry barriers
Monopoly/Dominance due to statute/govt. sanction
 Social obligation/costs
 Relative competitive advantage: development vs
adverse effect on competition
4
Cartels
 Cartel
 Association of producers, sellers, distributors,
traders or service providers who
 By inter-se agreement limit, control or attempt to
limit/control the production, sale or price of or trade
in goods /services
5