Objective of the Summer Course
CIRC is a premier research and capacity building institute
with a focus on economic regulation and competition policy and law. It has been promoting and spreading
awareness on Competition Law and its scope since its inception. In pursuance of this objective, CIRC
conceptualised a 3 day course on “Competition Law & Practice in India” to be held bi-annually in summer and
winter. After the huge success of its Winter Course in 2013, CIRC successfully delivered the three days Summer
Course from 19th June to 21st June, 2014 at New Delhi.
Methodology and Course Content
The course was designed to give participants a thorough
understanding of the Competition Law of India with related case studies to understand the practical implications
of the law in practice. The faculty comprised of the representatives from the Competition Commission of India
(CCI), premier law firms of the country and CIRC with participants from different disciplines such as law,
economics, commerce and management & professionals such as lawyers, economists and researchers. The course
relied on sustained exposure and interactions of the participants with members of faculty with a view to allow
participants the full advantage of their rich theoretical and practical knowledge.
The course comprised of class-room lectures of 1 hour 45 minutes each – arranged thematically beginning with
introductions to the specific provisions of the Competition Act, discussing the underlying theory and its
practice and culminating with discussions on decided cases. Each session was followed by an open-house Q&A
session. To assess the attentiveness and comprehension of students in each session, a Multiple Choice Quiz by
the lecturer at the end of each lecture was also conducted. The Summer Course ended with a Panel Discussion on
contemporary issues related to IP law and competition law interface and on challenges and achievements by CCI in
the five years of Indian competition regime.
Knowledge Sessions
Day I Session I
The first session was delivered by Mr. Manas Kumar Chaudhuri,
Partner, Khaitan & Co. introducing participants to the basics of Competition Law and Policy with emphasis on
objectives of Competition Law. He encouraged the students to pursue such courses as it can give them first mover
advantage. He explained the importance of understanding the history, fundamentals, objectives, evolution and the
intent of drafting such law by the Legislature. He stressed on the fact that mere law is not sufficient. There
is a need for good enforcement authorities. Highlighting the fact that MRTP Act was having only recommendatory
powers, Mr. Manas very interestingly laid down the differences between MRTP Act and Competition Act, 2002. He
touched upon the four facets of CCI i.e. adjudicatory, regulatory, inquisitory and advisory using case studies
such as United Brands Case, TRAI Case, SAIL Case, Jet Etihad Case, Coal India Ltd. Case and LPG Cylinder Case.
He also discussed the ingredients of Competition Policy and other concepts like dawn raids, stop clock and pay
for delay cases. The session ended with an interactive Multiple Choice Questions (MCQs) session.
Day I Session II
The second session on the basic concepts of economic theory was
delivered by Mr. Vipul Puri, Deputy Director, CCI. The emphasis was on understanding market economics and the
existence and operation of competition in its various forms. The session demonstrated the need for legal
practitioners to possess an astute understanding of the principles of economic theory insofar as dealing with
Competition Law and Practice and went ahead to educate the participants of these basic tenets of economics. The
session evidenced this from the fact that most critical determinant of punitive behavior under the Act is
Appreciable Adverse Effect on Competition has nowhere been defined in the Act. This necessitates the economic
interpretation of it. He also discussed the concepts of invisible hand principle, elastic and inelastic demand.
He explicitly explained the differences between the different types of market structures, citing cases from
smartphone and automobile industry. The session also dealt in detailed provisions of the Relevant Product Market
and Relevant Geographic Market. He also explained different economic tests like SSNIP Test, Critical Loss
Analysis and EH Test. The session terminated on a detailed case study of the acquisition of United spirits by
Diageo and recent case of Hiranandani Hospital (stem cell case).
Day II Session I
The first session, on second day of the Summer Course, was
delivered by Mr. K.K Sharma, Head K.K. Sharma Law Offices, Delhi. He commenced the session with a presentation
on ‘Regulation of Anti-Competitive Agreements’ and their interpretation and implementation under the Competition
Act 2002. Participants were introduced to various provisions under the Act. The two different types of
agreements i.e. horizontal and vertical agreements were discussed in detail. Mr K.K. Sharma highlighted the fact
that vertical agreements carry more penalty than other types of agreements. The concept “what is a cartel” and
how it functions was also explained. He discussed many case studies; some of which were Cement Association Case,
Coal India Limited Case, LPG Cylinder Case etc. The session concluded with a round of MCQs session.
Day II Session II
The second session considered the issues of “Abuse of Dominance”
by enterprises in the market and policies to regulate such abuses. The session was delivered by Mr. Saket
Sharma. Beginning with identifying the problems and characteristics of monopoly situation, he highlighted the
fact that monopoly situation leads to dead weight loss and that there is thin line difference between what can
be said to be competitive and what as anti-competitive. He very briefly touched upon Section 2 of Sherman Act
(USA) and Article 102 of TFEU (Europe). He also explained the abuse of dominance provisions i.e. Section 4 of
the Indian Competition Act. The session also dealt with the steps to determine abuse of dominance using case
studies such as the BCCI Case, Coal India Ltd Case, DLF Case and Cellophane Fallacy Case. A well-formulated
table clearly carved out the different types of exclusionary and exploitative conducts. Various abuses of
dominant position were described with examples from the decided Indian cases. The different types of remedies
i.e. behavioural and structural were also discussed with illustrations. Other concepts which were discussed
during the session were relevant market, Essential Facilities Doctrine (US v Terminal Railroad and Trinko Case)
and Monopoly leverage. Session was followed by MCQs to test the knowledge acquired.
Day III Session I
The first session of the concluding day of the Summer Course began
with examination of the regulations of combinations and M & As under the competition law framework by Dr.
Vijay Singh, Deputy Director, CCI. Participants were explained regulation of combinations, different threshold
limits, exemptions and how to assess AAEC. Participants were given a hypothetical case on manufacturing of pen.
Using this case, he explained the concept of economies of scales. Different types of mergers and amalgamation
were also discussed. Horizontal (Flipkart and Myntra Case), Vertical (Tata Group purchasing tyres from MRF) and
Conglomerate (Reliance Group) mergers were explained in detail. Thereafter he examined the “Per se” and “Rule of
Reason” approaches to analyse the anti- competitive effects of business practices as well as the process of
determinability of offences and charges under different approaches. Detailed case study on Multi Screen Media
Pvt. Ltd. Case and Century Tokyo Leasing Corporation Case were done. Other provisions relating to M&As in
India was also touched upon. The resource person also explained the difference between the word ‘control’ under
Section 2(a) and Section 5. Session was followed by MCQs to test the knowledge acquired
Day III Session II
Panel Discussion
The last and the final session of the Summer
Course proceedings was an intensive Panel Discussion chaired by Mr Amitabh Kumar, Partner, J. Sagar Associates.
Other panellists were: Mr Vipul Puri, Deputy Director, CCI and Mr Saket Sharma, Jr. Fellow, CIRC.
The discussions were divided into two broad themes followed by open floor comments on the issues by all the
panellists and a final Q&As amongst all participants. The two themes for the panel discussion were:
1. Interface between Competition Law and IPR in India
The Competition Law and IPR
theme was further bifurcated into:
a) Whether IP can be termed as monopoly?
b) Whether these laws
have divergent/ common objectives?
c) Case Studies
d) Jurisdictional Challenges to IP
Each
speaker shared their views on this highly debated theme. According to Mr. Vipul whether IP can be termed as a
monopoly or not depends on various things including the available substitutes and the market power gained
through IP. Adding to this, Mr. Saket very precisely stated that traditionally seen as opposites, both IP and
Competition Law are now seen as complimentary and promoting innovation. Thus, earlier seen as opposites like
fire and water; now both set of laws are aimed at combining fire and water to form steam i.e. innovation.
The concept of FRAND was also touched upon. Panel discussed on IP having monopoly in the case of Standard
Essential Patents with relevant examples from various jurisdictions. Recent EU decisions of Samsung and Motorola
were also touched upon for describing the various competition issues due to IP. Section 3(5) of the Act was
explicitly discussed. All the panellists shared a common view that there are no standards/ precedent cases
declaring as to what amounts to be reasonable and what is not. It was agreed that the jurisprudence in such
cases will take some time to settle in jurisdiction like India when we have some settled precedents by the
Courts and authorities for guidance.
2. Future of Competition Law Practice in India
Five years of Indian Competition Law
regime was discussed in detail. The role, functioning and challenges before the CCI were highlighted and
analysed. Various decided cases by the CCI were cited Other concepts such of as that of competitive neutrality
and competition advocacy were also discussed. The Chair concluded that in light of available CCI manpower
strength and its functioning time period, CCI has done a fair job and has dealt with cases from diverse sectors
of the economy. The future career options for the students were also discussed. Thereafter the floor was left
open for the questions and queries from the participants. Panellists addressed the queries raised by the
students and highlighted the need of experts in the field of competition law.
The Summer Course on “Competition Law & Practice in India” culminated with the panellists distributing the
certificates to all the participants.
About CIRC
The CUTS Institute for Regulation & Competition (CIRC), a premier research and
capacity building institute was established in 2008 by CUTS International www.cuts-international.org CIRC has
been conducting competition policy advocacy and undertaking training and academic courses on Competition Policy
& Law and Economic Regulations. With the mission to be a Centre of Excellence on Regulatory and Competition
Issues, CIRC primarily focuses on economic regulation in infrastructure sectors, and competition policy and law
with an objective of reaching out to the target audience in India and other developing countries in Asia and
Africa. CIRC offers practical focus on educational and training programmes on economic regulation, and
competition policy and law. The Institute aims to facilitate research to enhance understanding and explore
inter-disciplinary linkages among the identified subjects. CIRC is striving hard in its endeavour to generate
and disseminate knowledge on its thrust areas. Further, since its inception CIRC has taken varied initiatives to
impart knowledge and train various stakeholders on these areas with aim to build capacity of these stakeholders,
thus contributing to the economy in this knowledge intensive era. For further details on our initiatives, please
visit website: www.circ.in
