Tag results for 'Competition Law'
Changes to the Competition Act – a catalyst for the Indian economy?
India is increasingly becoming a key jurisdiction for foreign investment. To keep the momentum going, the Indian government has consistently attempted to keep the business environment friendly and less burdensome. This includes: a reduction in corporate tax rates; easing the liquidity problems of non-banking financial corporations and banks; foreign direct investment policy reforms; and easing compliance norms – all with the aim of promoting ‘ease of doing business in India’. After more than a decade, India’s competition law has recently been amended, bringing about key changes that will impact businesses. The 2023 Amendments to the Indian Competition Act 2002 (the Act) introduce changes that several antitrust jurisdictions are still considering. The 2023 Amendments are a mixed bag of changes: several are business friendly – such as commitments and settlements, expedited merger review timelines and introducing a leniency-plus regime – while others aim to achieve greater regulatory oversight and stricter enforcement, such as deal value thresholds, penalties on global turnover and increased liability for hubs in ‘hub-and-spoke’ cartels. The Competition Commission of India (CCI), the body entrusted with the responsibility to nurture and maintain well-functioning markets that facilitate the growth manifested by the Indian government, must adopt a balanced approach to ensure that competition enforcement does not get in the way of ‘economic growth’ as envisaged under the Preamble of the Act. This article examines the impact of the 2023 Amendments on the Indian market. In particular, the writers examine the CCI’s approach in adopting these tools and tailor it according to the requirements of the Indian economy.
Released on Dec 21, 2023
An analysis of the DoJ/FTC’s draft revised Merger Guidelines
On 19 July 2023, the United States Federal Trade Commission (FTC) and the Department of Justice (DoJ) released a draft update of the Merger Guidelines. The FTC and DoJ use the Merger Guidelines as an internal reference when evaluating the potential competitive impact of a proposed transaction. It also serves as a policy statement to the public regarding their enforcement priorities. The draft Guidelines differ dramatically from prior guidance issued in 2010 in the Horizontal Merger Guidelines, and from the Vertical Merger Guidelines released more recently in 2020. This article analyses the key changes in the draft Guidelines and what they may mean for US merger enforcement going forward.
Released on Dec 21, 2023
Crouching dragon, paper tiger? Discerning the powers of the Competition Commission in market inquiries
Like many regulators around the world, the South African Competition Commission is increasingly turning to its power to conduct market inquiries as a measure to not only better understand the dynamics of markets that may be operating inefficiently, but also as a tool for ex ante regulation of market conduct without the rigour of a full-blown prosecution involving the adversarial testing of evidence. Especially in the case of novel and fast-moving markets in the new digital economy, a slew of market inquiries have culminated in pointed and interventionist ‘remedies’. A key procedural question is the extent to which remedies from a market inquiry are capable of direct enforcement on their face or whether the Commission’s powers are more muted, requiring sector-specific regulation within the four corners of enabling legislation, or follow-on prosecution by the Commission for prohibited conduct. Despite the perceived urgent need to regulate markets that move faster than prosecution in the ordinary course, and tempting analogies to be drawn with the constitutionally imbued powers of the Public Protector, the writers caution against a purposive interpretation that may trammel the rights of respondent companies in complex circumstances at least once removed from a vertical application of the Bill of Rights.
Released on Dec 21, 2023
Interview with Andrea Coscelli CBE, former CEO of the Competition and Markets Authority
In this interview, Andrea Coscelli CBE, former Chief Executive Officer (CEO) of the Competition Markets Authority (CMA) from 2016 until 2022, offers insight into the challenges he and the CMA faced, particularly following the 2016 Brexit referendum, in which the UK voted to leave the European Union. The interview also discusses how the CMA is protected from political interference, before Andrea delves into the difficult decisions he faced as CEO, and what he might do differently if he had the opportunity. The discussion considers the CMA’s portrayal as an aggressive enforcer and the emulation of the CMA in market investigations.
Released on Dec 21, 2023
Interview with Ravneet Kaur, Chairperson of the Competition Commission of India
In this comprehensive interview, the Chairperson of the Competition Commission of India (CCI) provides a detailed analysis of recent amendments to the Indian Competition Act 2002, highlighting their significance in bolstering competition and economic growth in India. The amendments, encompassing both procedural and substantive changes, introduce business-friendly mechanisms such as settlements and commitments, and expedited timelines for combinations. The Chairperson emphasises the positive impact of these reforms on easing market corrections and streamlining merger review processes. The interview also addresses the introduction of deal value thresholds for M&A approval, illustrating the CCI’s commitment to balance regulatory requirements with the facilitation of M&A activities in a thriving economy. The discussion further delves into the computation of penalties based on global total turnover, underscoring the principle of proportionality in penalty determination. The interview sheds light on the CCI’s enhanced capabilities in addressing market behaviour of large technology companies, aligning with the evolving landscape of digital markets. Overall, the interview offers valuable insights into the CCI’s strategic vision for promoting healthy competition and fair business practices in India’s dynamic economic environment.
Released on Dec 21, 2023
Competition Law International - November 2023
Released on Dec 20, 2023
The African Continental Free Trade Area Competition Protocol: a necessity or an overzealous endeavour?
The African Continental Free Trade Area (AfCFTA) is one of the 13 flagship projects of the Agenda 2063 of the African Union. Its aim is to create a single integrated African market and boost intra-Africa trade. To achieve this, AfCFTA will need to address some factors that have dwarfed intra-Africa trade for decades. Among these factors are anti-competitive conduct by private enterprises operating on the African continent. The focus of this article is on the remedy advanced by AfCFTA to address the problem of less meaningful trade and integration on the African continent posed by anti-competitive conduct of private enterprises. A Competition Protocol (CP) has been adopted pursuant to Article 4 of AfCFTA to address this problem. This article interrogates whether the CP is a necessity, or it is simply an overzealous endeavour.
Released on Dec 20, 2023
Recent digital economy policy developments and enforcement actions in Taiwan
The rise of digital technologies, notably e-commerce and algorithms, has brought increased attention to competitive challenges. Consequently, competition authorities across different jurisdictions have embarked on the task of developing policies to address these potential competition issues. In line with this collective effort to establish a regulatory framework, the Taiwan Fair Trade Commission (TFTC) released the White Paper on Competition Policy in the Digital Economy on 20 December 2022 (‘the White Paper’). The White Paper starts with the TFTC’s observation of the development and characteristics of the digital economy. It goes on to outline the TFTC’s observations, considerations and concerns regarding competition with the digital economy. It suggests possible approaches to address these emerging competition issues, shedding light on the TFTC’s enforcement position based on how it views the market reality in the digital economy. This article aims to summarise the key competition issues highlighted in the White Paper, focusing on three major aspects – abuse of a dominant position, merger and concerted action – and offers insights on the TFTC’s recent practices concerning the digital economy.
Released on Dec 20, 2023
Convincing neutral decision-makers: legal and evidentiary lessons from the Rogers–Shaw and Microsoft–Activision decisions
While international competition regimes rarely operate in precisely the same way, many share a common feature: the decisions of the country’s competition law authority are subject to third-party review. Usually, Canadian and United States enforcers must prove their case in front of an independent judiciary. In Europe, enforcement decisions may be subject to judicial review or appeal. Whatever the precise structure, the third-party review process has important implications for enforcers and merging parties alike. Perhaps the most fundamental is whether third-party reviewers approach the law and evidence the same way as enforcers. Often, they do not. Two recent Canadian and American merger cases are striking examples of this phenomenon. In these cases, judges dismissed the enforcer’s case because they fundamentally disagreed with the enforcer’s approach to the law and the evidence provided. In Canada, the CAD$26bn Rogers–Shaw merger – one of the largest domestic corporate transactions in the nation’s history – closed in April 2023 after over two years of unsuccessful government regulatory challenges and litigation. The global Microsoft–Activision acquisition – labelled the largest acquisition in the technology industry’s history – faced significant regulatory opposition from regulators in the US and the United Kingdom before finally closing on 13 October 2023. An attempt by the US Federal Trade Commission to block the Microsoft–Activision transaction failed in July 2023. Although one case involves a vertical merger in the technology industry and the other involved a horizontal merger in the telecommunications industry, the enforcers approached both cases in a similar fashion, and both lost their cases for the same reason: their approach to the law and the evidence was fundamentally different than that adopted by the courts. Despite the differences between the cases, Canada’s Competition Tribunal in Rogers–Shaw and Judge Corley in Microsoft–Activision adopted a strikingly similar approach to the law and evidence: one grounded in the principles of fairness, efficiency and common sense. Their decisions hold valuable evidentiary and legal lessons for enforcers and practitioners alike. This article summarises both cases, outlines the key similarities in the eventual decisions and concludes with a list of critical takeaways for enforcers and practitioners to refer to in circumstances where they must convince third-party decision-makers of the correctness of their position.
Released on Dec 20, 2023
Editor’s note - Competition Law International - November 2023
Released on Dec 20, 2023
Competition Law International - June 2023
Released on Jul 26, 2023
Procedural changes to China merger control regime: ready to see both sides of the coin?
This article provides a brief introduction on the procedural changes before seeking to provide a dialectical and nuanced perspective on the potential influence these changes will bring to multiple stakeholders of China merger control regime. This includes the notifying parties, the antitrust authorities (the State Administration for Market Regulation or SAMR), and others.
Released on Jul 26, 2023
Simplified proceedings in China: statistics, trends and implications since 2014
In mid-2014, China introduced a simplified proceeding for mergers that are not expected to harm competition or change the market structure in China. This is the ‘fast track’ merger review process, which is similar to the ‘short form’ proceedings in the European Union and other jurisdictions. In China, the simplified proceeding will apply where transactions that meet at least one of six criteria.
Released on Jul 26, 2023
Tougher sanctions and liabilities in China’s amended anti-monopoly law
China’s Anti-Monopoly Law (AML) has only been enforced for 15 years, but despite this relatively short timeframe, China has not shied away from intensive antitrust enforcement. The authorities have also extensively engaged in drafting AML implementing regulations or guidelines. Within this process, it has been gradually perceived that the AML adopted in 2007 was no longer ‘fit’ for a changing landscape, particularly after more than a decade of capacity building. As a result, a revision of the AML was initiated in 2019 and was finalised on 24 June 2022 (the New Law). The New Law brings in total 38 amendments, including 13 newly added articles and 25 revised articles. All those amendments can be divided into two types: minor changes and significant changes. This article reviews those amendments and attempts to explain the reasons behind them, as well as their significance and problems for antitrust enforcement in the future.
Released on Jul 26, 2023
Digital economy driving China’s antitrust reform
A 2022 amendment made minor modifications to China’s Anti-Monopoly Law (AML), responding in part to challenges triggered by the digital economy. The amendment directly prohibits undertakings from using data, algorithms, technologies, advantage in capital and rules to engage in anti-competitive conduct. Indirectly, the amendment introduces a new legislative purpose (‘encouragement of innovation’), a classification and grade mechanism to merger control, an explicit provision against hub-and-spoke agreements, and requires notification of problematic mergers below the notification thresholds. The Chinese competition authorities should revise their supporting rules, not overlook the positive roles played by capital, think twice before investigating exploitative abuses of dominance, and better coordinate with other administrative authorities.
Released on Jul 26, 2023
China’s fair competition review system – time to take stock
China’s Anti-Monopoly Law (AML) targets three categories of anti-competitive conduct which form part of most, if not all, antitrust laws globally. In addition, in consideration of China’s unique circumstances as an economy transitioning from a planned economy to a market economy, the legislator also included a prohibition of anti-competitive conduct not only upon market players, but also on government bodies. As a result, the AML contains a chapter on the ‘abuse of administrative power to exclude or restrict competition,’ which is more colloquially referred to as ‘administrative monopoly’ conduct.
Released on Jul 26, 2023
Challenges and solutions: navigating China’s SEP litigation system
As the world’s largest mobile phone terminal manufacturer and consumer market, China has emerged as one of the jurisdictions with the highest number of disputes involving communication standard essential patents (SEPs). High-profile cases, such as Huawei v InterDigital (fair, reasonable, and non-discriminatory (FRAND) rate determination), Huawei v Conversant (anti-suit injunction) and OPPO v Sharp (global rate setting), have attracted global attention. The author of this article shares their thoughts and experience in representing clients in the three of these cases.
Released on Jul 26, 2023
Editor’s note - Competition Law International - June 2023
Released on Jul 26, 2023
Playing offence: China’s battle to (merger) control semiconductors and critical technologies
In October 2020, SK hynix announced it would acquire Intel’s NAND memory and storage business to enhance the competitiveness of its NAND flash solutions. The deal would make SK hynix second only to Samsung among the world’s largest NAND memory makers. A number of competition authorities reviewed the deal. In May 2021, the European Commission and Korea’s antitrust agency cleared the deal without any issues. The UK’s Competition and Markets Authority followed suit and found that there would be ‘strong remaining competitors’ who had their own plans to ‘expand their capacity’. The Committee on Foreign Investment in the United States (CFIUS) also weighed in with approval. China was the final antitrust hurdle. As with many other semiconductor reviews before it, the State Administration for Market Regulation (SAMR) approved the SK hynix/Intel deal a year later but imposed a range of behavioural conditions to address competition concerns (not identified elsewhere) and security of supply.
Released on Jul 25, 2023
Between a rock and a hard place: when China’s merger commitments to supply meet US export controls
This article reviews recent US export control rules impacting China and relevant Chinese merger control practice, and considers the implications of the regulatory tension between the two regimes for parties involved in a China merger review or subject to China merger remedies.
Released on Jul 25, 2023
Economic tools employed in China’s merger review: insights from intervened cases
This article summarises the Chinese decisions of intervened cases to identify the key economic tools used by Chinese regulators and elucidate the Chinese merger review process more generally.
Released on Jul 25, 2023
Hong Kong’s competition ordinance: successes and challenges six years on
This article considers the main achievements in the first six years of Hong Kong’s Competition Ordinance (the ‘Ordinance’) and the pain points that have emerged. The article provides in-depth analysis of the Ordinance, cartel and non-cartel enforcement activity, ongoing investigations, private litigation and merger control. The article covers key policy developments and, looking ahead, what we can expect to see from the Hong Kong Competition Commission.
Released on Jul 1, 2022
UK collective proceedings in 2022 and beyond
After a pivotal year for the collective proceedings regime in England and Wales in 2021, this article explores the further developments coming out of the judgment of the collective proceedings orders application by Malcolm McLaren. It also looks ahead, from the time of writing in March 2022, at the key issues anticipated in the forthcoming year, in particular the management of collective proceedings beyond certification.
Released on Jul 1, 2022
Remedy commitments in Brazil: negotiation, procedure and recent trends
Remedy commitments have been widely discussed abroad and in Brazil; nevertheless, discussions focusing on their procedural aspects are few, even though these have become increasingly important. In this article, we provide an overview of procedural aspects of remedy commitments in Brazil and highlight important aspects that applicants to merger procedures should bear in mind when negotiating with the Brazilian antitrust authority (CADE). We provide data showing that it is uncommon for merger procedures to require merger control agreements but explain that, when the situation arises, applicants must be wary of the importance of negotiating clear provisions. We further explain that applicants must ensure compliance with the terms of merger control agreements, seeing as two recent decisions issued by CADE demonstrate that the antitrust watchdog will not shy away from rejecting the transaction, should the applicants fail to comply with the merger control agreement.
Released on Jul 1, 2022
Not the dawn of a new age: the EU Commission’s competition policy review
On 18 November 2021, the European Commission adopted a communication with a promising title: ‘A competition policy fit for new challenges’. The document covers all pillars of EU competition enforcement: antitrust law, merger control and state aid law. It also addresses new issues, such as the Digital Markets Act and the fight against third-country subsidies. However, although the Commission announced ‘a review of competition policy tools with unprecedented scope and ambition’, the 20-page paper does not reveal any ground-breaking new policies. Antitrust practitioners looking for a revolution might therefore be disappointed.
Released on Jul 1, 2022
The Spanish Courts and the golden thread: the return of the presumption of innocence?
In 2021, Spanish Courts annulled three relevant decisions of the Spanish Competition Authority (the ‘CNMC’) based on the lack of incriminating evidence. These cases are characterised by an in-depth assessment of the evidence used by the CNMC to find an infringement and send a clear message to competition authorities in Spain to improve the quality of the reasoning and evidence behind their decisions. This article analyses these cases and the lessons that can be extracted from them for authorities and practitioners.
Released on Jul 1, 2022
Editor’s note - Competition Law International - June 2022
Released on Jul 1, 2022
Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and another
This article, by former Judge President of South Africa’s Competition Appeal Court, Dennis Davis, examines the decision of South Africa’s Constitutional Court in the Mediclinic case, which concerned a proposed merger in the private healthcare sector involving hospitals in relatively small towns. The Constitutional Court overturned the decision of the majority of the Competition Appeal Court, which found that because medical care in Potchefstroom and Klerksdorp did not fall within the same local market, the merger did not give rise to the problem of a substantial lessening of competition in the local market. The article concludes that whilst the Constitutional Court’s emphasis on the role that the Constitution must play in the interpretation of provisions of the Competition Act is to be applauded, and this case will doubtless influence the interpretation of the Competition Act in future litigation, the right to healthcare in section 27 of the Constitution is not a jurisprudential war cry, and its application must still depend on the facts of the case. The decision may invite the Competition Commission to invoke the Constitution, almost without fetter, and reduce the Competition Appeal Court’s jurisdiction considerably so as to render the Competition Commission far less accountable than should be the case in a dispensation based on the rule of law.
Released on Jul 1, 2022
Interview with Jacques Steenbergen, President of the Belgian Competition Authority
An interview with Jacques Steenbergen, President of the Belgian Competition Authority, by Michael Reynolds. The interview was conducted at the IBA 25th Annual Competition Conference in Florence, Italy, in September 2021.
Released on Jul 1, 2022
From the Co-Chairs – Communications Law
An introduction to the August 2021 IBA Communications Law Committee newsletter
Released on Aug 2, 2021