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ANNEXURE H
Article Series on Competition Law & Policy:
Outline
Every day, journals in India contain articles and news items addressing competition
issues in the economy. At the micro level debates also take place around the
efficacy of the Monopolies and Restrictive Trade Practices Act, 1969. However,
the Government, including at the level of the Prime Minister, has reiterated
their will to adopt a new competition law, which has already been drafted. The
new Competition Bill for India has also spurred a huge debate. The debate is
also part of a broader international phenomenon. Policy-makers all over the
world are increasingly looking at competition law and policy to ensure that
the benefits of the market system are shared widely and there is a lively ongoing
discourse on how this may best be achieved in which India is an active participant.
That said, most of the articles carried in Indian media till now been in reaction
to developments at the national level, notably the report on competition law
by the High Level Committee and the Draft Concept Bill. The main issue which
has been dragged into the debate is that on the merger threshold levels for
being reviewed. A school (close to Chicago school) think that market can take
care of competition problems, while another feel that if there is no merger
control, dominant players will continue to emerge with distinct possibility
of being abusive. In this debate, attention to other equally important anti-competitive
restraints have been ignored, i.e. woods are being missed for the trees. For
example cartels or intellectual property.
A wide-ranging and well-informed public debate, inside and outside Parliament,
is critical to formulating and implementing an effective law. To encourage this
debate, CUTS will publish a series of articles, focusing on one aspect of competition
law/policy at a time, based on country experiences around the globe, with the
aim of informing the wider public. The articles will help the civil servants,
parliamentarians and others to have a better understanding of competition issues
over the course of the weeks in which the articles are serialised. Our hope
is that this will enable the enactment of the new competition law truly democratic.
Following is the proposed list of articles in broad outline, upon which comments
have been invited and incorporated:
1.
The relevance and importance
of competition law/policy in globalising and liberalising economy; what elements
it should contain; what should be the nature/characteristics of such law; examples
like South Africa, UK etc. To answer the question: why they have opted for new
law etc. (all in Indian context and general in nature)
2.
M&As and role of competition law/policy:
sharing experiences on mergers et al from other countries and relating it to
the Indian context; taking a single example say the global takeover by Coke
of Cadbury Schweppes. How they were successful in most developing countries,
but unsuccessful in nearly all developed countries. The article will bring out
how differently it was dealt with in different countries; providing options
to deal with M&As based on countries' experiences and highlighting best
way forward for India etc.
3.
Abuse of dominance: what is dominance; how it is defined; success stories
from other countries and highlighting past failures in India; suggesting the
best way forward etc.
4.
Cartels and provision for leniency programs:
In its entire history the MRTP Act has not been able to indict a cartel or collusive
action. The new law is also quite weak. To structure this piece with success
stories elsewhere and failures in India intermingling with political connections;
proactive role of competition authorities etc. For example by providing protection
to whistleblowers or leniency programme for approver firms.
5.
IPRs and competition law: relevant Articles of TRIPs and failure to make use
of that; few examples in the pharmaceuticals sector (SA/Brazil); parallel imports;
compulsory licensing; IPR as a vehicle to price-fixing/cartelisation; IPR related
provisions in competition law with few examples and their effectiveness.
6.
Exception and exemptions: How do different competition regimes deal with flexibilities
for small and medium enterprises, key sectors, including the affirmative action
programmes in the USA, South Africa and Malaysia for blacks and natives; scope
and nature of such exceptions & exemptions.
7.
Structure and models of competition authority:
few models with examples in other countries; what should be in Indian context;
should it be linked with consumer courts for retail level abuses (innovation
needed/some suggestions on how) etc.
8.
Competition authority and other regulatory authorities: areas of conflict and its probability to end up in ego clashes; clarity of
jurisdiction needed; different models for demarcation of jurisdiction b/w them;
who should prevail and why; best way for India
9.
Person-oriented matters: over-zealousness; high retirement age; recruitment
of retired bureaucrats and judges and issue of independence of judiciary (SC's
judgements); past examples in India; good examples in other countries such as
Brazil
10.
Independence of competition authority:
why needed; how can it be guaranteed; difference in theory and practice; different
models of giving independence; cost of political interventions … few examples
in this regard; put forward best way for India
11.
Competition law and poor: competition policy as a development policy instrument;
utility sectors, their regulation, competition and the poor; competition policy
and strengthening of ‘trickle down’ mechanism; competition policy and technology
development – pro-poor technology/innovation; competition law, IPR and poor
– emphasizing pharmaceutical and agriculture sector; Reach of competition law
vis-à-vis retail level competition abuses; poor, illiteracy and competition
advocacy, etc.
12.
Cross-border concerns and need for cooperation:
Cases like soda ash (and steps by different countries like EC, SA and India),
vitamin cartel, cement cartel etc. and a case for enhancement of cooperation
and/or an international competition rules
Few other articles could be competition laws in small economies and difficulties
faced by such countries; bar association controversy in SA and its projection
in Indian scenario etc. These could be stand-alone articles, not being part
of the series.
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