market challenges

Report
42nd National Convention of Company Secretaries, Kolkata
MARKET CHALLENGES- DYNAMIC BUSINESS
ENVIORNMENT AND ROLE OF PROFESSIONALS
G R Bhatia
Partner & Head
Competition Law Practice Group,
Luthra & Luthra Law Offices,
New Delhi
22nd August, 2014
© 2014 Luthra & Luthra Law Offices
www.luthra.com
Nature of Markets
 Markets by their very nature are unstable,
volatile and dynamic;
 With the passage of time market structure changes
 entry/exit of economic actors
 variation in demand and supply
 Pressure of import and opportunities for
exports
 technology changes
 consumer preferences change
 The above factors change the traits, features,
conditions and dynamics of the market.
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Responsibility of the State
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Rule of law necessitates proper governance of markets;
the regulator endeavors to align regulation and do not allow
regulatory regime to become turtle;
The business ingenuity, however runs at a pace faster than
that of a regulator
Various regulators are entrusted to regulate assigned sectors;
Regulators such as SEBI
 RBI
 CERC
 IRDA
 PNGRB
 TRAI
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In the words of Adam Smith…
“There is an immense need to have a
proper regulatory mechanism for
prevention of anti-competitive
agreement which not only affect the
market economy leading to
monopolistic approach but also
victimizes the consumers and
thereby cause harm to the entire
economy creating hindrance to the
competition in the market.”
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Regulatory Regime
 Sector specific regulator determines
number of operators, fixes tariffs,
provides for sunset clause;
 Regulator may also be a player in the
market;
 Regulator- generally created by a
statute and occasionally, a nonstatutory body- BCCI
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Competition Commission of India
Not specific to any sector and not a player in the market;
Competition is benign;
Competition brings prosperity;
Competition in markets brings incremental benefit to
GDP;
 Seeks to promote and sustain competition, protect the
interests of consumers and ensure freedom of trade in
the markets of India;
 Prohibits
anti-competitive
agreements,
abuse
of
dominant position by enterprises and regulates
combinations.
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Contd.
 Maintaining free and fair competition is a
challenge;
 Need for law and an umpire is imperative;
 Empowered to impose penalties on delinquents
and block anti-competitive mergers;
 Applicable to all sectors of the economy;
 sovereign functions including activities relating
to atomic energy, currency, defense and space
are exempted from the discipline of law
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Unique Features of Competition
Regime
 ‘consumer’ has wide connotation;
 ‘enterprise’
includes
government
departments;
 Inquiry can be initiated suo motu;
 Effect based approach;
 Relevant market is key to determine
dominance of an enterprise;
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Market for Inputs
 A business house is a consumer/buyer;
 Efficient buying of inputs is key to success;
 Many a times suppliers of inputs indulge in
collusion in respect of price or quantity;
 Input supplier maybe dominant in the relevant
market;
 A dominant supplier may exercise dominance
while supplying inputs
 CCI provides a platform to address these
concerns;
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Jurisprudence
 Builders Association of India v. Cement
Manufacturers Association and Ors (2012)penalty of Rs 6300 crores on 11 cement
makers;
 LPG cylinders case;
 Coal India v. Explosives Suppliers;
 Faridabad industries association v. Adani gas
limited;
 Kapoor Glass Private Limited v. Schott Glass
India Private Limited (2012)- penalty of Rs
5.66 crores;
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Market for Outputs
 Assess your position in the relevant market;
 Ask yourself a question ‘Am I dominant?’
 Dominance is determined on the basis –
 Market share
 Size and resources
 Size and resources of competitor
 Monopoly conferred by statute or advantage
of head-start
 Abusive conducts by a dominant player are
prohibited;
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Contd.
 Unless justifiable on the touchstone
of competition, the following conducts
are prohibited
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Tie-in sale
Exclusive supply
Exclusive distribution
Resale price maintenance
Refusal to supply
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Case laws
 DLF Limited- penalty of 630 crores
 M/s Maharashtra State Power Generation
Company Ltd. v. M/s Mahanadi Coalfieldspenalty of Rs 1773 crores
 MCX Stock Exchange v. NSE- penalty of Rs
55.5 crores
 M/s Peeveear Medical Agencies, Kerela v.
AIOCD
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Heightened risk
 Leniency mechanism to bust cartel;
 DG’s power to undertake search and
seizure;
 Third parties mandated to furnish
information;
 MoU with matured jurisdictions;
 Tightening of investigation procedures;
 Invoking suo motu powers
 Media hype
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Role of Company Secretaries
 Compliance with competition law is imperative;
 Need for and usefulness of having a CCP;
 Compartments of CCP are: Review all trade agreements;
 Impart training on competition law
 Put in place competition compliance manual
 Prepare ready reckoner of Do’s and Don'ts
for employees
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Important to remember…
“One size does not fit all”
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Luthra & Luthra
Law offices
103, Ashoka Estate
24 Barakhamba Road
New Delhi – 110001
Tel No. 011-41215100
Email: [email protected]
www.luthra.com
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