National Conference on Economics of Competition Law

No Abstract.

Competition Issues in Public Procurement: Is Tender Design the Solution?

Public procurement is one of the most important economic activities for any economy. The forward linkages and its impact on social and industrial policy give it “an engine of growth” dimension. In this attempt, we try to study why competition is crucial for the success of any procurement policy. The fundamental need for public procurement is to be efficient, as an “efficient” public procurement not only reduces public expenditure but also has positive externalities. The basic framework within which we try and study the competition concerns in public procurement is based on two types of concerns, namely collusive and non-collusive. These two types of concerns emanate from a combination of numerous factors like number of sellers, demand conditions, and market dynamics. The factors, which result in inefficient procurement, are often not amenable to quick changes to ward off the threats completely. Therefore, a multi-prolonged approach is needed for efficient public procurement outcomes. Tender designs draw the boundaries of the competition field where sellers compete for the market. Therefore, they can incorporate elements to address specific threats that a particular procurement market face. Hence, the tender design is a potential tool which can be utilised to mitigate and address these concerns.

Big Data Mergers: Bridging the Gap for an Effective Merger Control Framework

The emergence of multi-sided platforms, connected devices and Internet of Things (IoT) has turned us into a valuable information asset, whereby data about our tastes and preferences as a consumer can be ‘commoditised’. Even though ‘data’ is the key to competition, and thereby ensures competitiveness across markets – as diverse from retail to healthcare, from taxi rides to air travel, thanks to the uberisation of the economy – this valuable reservoir of information is controlled by a handful of Information Technology (IT) firms. Remarkably noteworthy is the fact that a significant proportion of the growth of these IT companies is not organic; instead, most of their valuable innovations have been acquired inorganically through acquisitions! Against this dynamic backdrop, this paper addresses the following research questions. First, what are the potential suitable tests for the notification of a transaction, and what factors must be taken into consideration for the selection of a particular test over others? Second, how can competition authorities innovate as regards the ‘theory of harm’? In other words, what should be the design and construct of a theory that can effectively capture the novel concerns in big data mergers? Here, the discussion is not just limited to ‘privacy’ as a dimension of competition, but also other areas of concern – such as non-horizontal effects in big data mergers. Finally, the paper very briefly discusses key factors to be taken into consideration for designing effective remedies.

Abuse of Dominance in Digital Platforms: An Analysis of Indian Competition Jurisprudence

An ongoing debate in competition jurisprudence today is with respect to the enforcement of competition law in digital markets. Digital markets are newer markets in context of which traditional tools of competition law have to be understood and applied. Though the challenges of competition enforcement in digital markets are manifold, this paper focusses on the assessment of dominance and abuse in platform markets, particularly in light of the 2019 Supreme Court judgement in the Uber matter. The Supreme Court’s opinion that loss-making pricing can be an indicator of dominance is inconsistent with the Competition Commission of India’s (CCI) views, which had cautioned against this circular interpretation of dominance and put the issue to rest. The author submits that conflicting interpretations such as these erode the certainty of the law. Competition laws can be flexible but not uncertain or unpredictable. The author identifies areas of concern in digital platforms that are yet unresolved and need to be addressed urgently by guidelines/amendments before the law on this issue becomes incoherent.

Attempt to Monopolisation and Digital Markets: Enforcement Gap

Rapid technological development, particularly in the Information and Communications Technology (ICT) sector, has led to a significant change in the industrial structure as well. Regulatory bodies world over are struggling to adjust to these changing scenarios. There is a widespread discussion regarding the need to regulate technology-driven markets such as e-commerce, telecommunication, etc. The practices used by some business giants are going against the neoclassical economic theory that profit maximisation is the goal of every firm. Firms are opting growth over profit. A large number of investigations were opened in India against business giants. Some of them were able to find contraventions of the Competition Act, 2002 (the Act). However, a large number of investigations were closed due to the lack of cognizance of collective dominance in law or inability to prove dominance in the traditional economic sense. It can be seen from the current jurisprudence of the Competition Commission of India (CCI) that there are constraints in handling competition issues in technology-driven industries mainly on account of the extant legal framework which does not recognise the need of assessing an appreciable adverse effect on competition where the dominance of the firm is not apparent. Although, the Act takes into account attempt to cartelisation as a contravention of the Act, it does not envisage an attempt to monopolise as a contravention of the Act. The past and current jurisprudence of the CCI indicates that CCI’s view is also undergoing radical change. This paper discusses the concept of “attempt to monopolise” as given in the Sherman Act and its applicability in the Indian context. The paper reviews the American antitrust literature existing on this subject and analyses the key factors which constitute antitrust violations under the clause “attempt to monopolise”. While the majority view emphasises on proving dangerous probability of success while determining an attempt to monopolise, as per the minority view, “attempt” connotes conduct and not a state of being. Unlawful intent can be inferred from the conduct as a proof of an “attempt”. The law does not require completion of a crime, it requires conduct. Thus, an attempt to monopolise is a conduct offence. This paper argues that borrowing the attempt to monopolise concept from the Sherman Act, 1890 will be helpful for the CCI in handling antitrust cases in technology-driven industries such as e-commerce, telecommunications, transport, etc. It will go a long way in achieving competitive markets, increased consumer choice and welfare in the long-run.

Competition Law and Employment

No Abstract.

Call for Papers

No Abstract.

Message from Hon'ble Minister of State for Finance and Corporate Affairs, Government of India

No Abstract.

Antitrust Investigation against E-Commerce Platforms in Goods Category in India: A Review from Timeliness Perspective

With the entry of e-commerce, the traditional way in which business was conducted in a marketplace has changed considerably. Although, e-commerce offers a multitude of pro-competitive benefits, yet it is vulnerable to anti-competitive practices owing primarily to its characteristic features such as strong network effects, high innovation rates, fast-changing technologies, etc. In this paper, we review antitrust cases against e-commerce platforms in goods category, in light of the fast-moving nature of online businesses and the importance of timeliness in completion of investigation. We have adopted a doctrinal research methodology in this paper. Based on the findings, we suggest that as per the dynamic situation of markets, it is imperative that a time-bound investigation may be completed so that the true picture comes out. We recommend a holistic investigation by the Director General in such cases and the use of negotiated remedies in the form of settlements and commitments.

Message from Hon'ble Minister of Finance and Corporate Affairs, Government of India

No Abstract.