India’s New Antitrust Regime

Aditya Bhattacharjea, Nov 17, 2010

India passed a new Competition Act in 2002 to replace its Monopolies and Restrictive Trade Practices (“MRTP”) Act of 1969. Enforcement of the new legislation was, however, delayed by more than six years. First, the Indian Supreme Court held that the qualifications and appointment procedure specified for Members of the proposed Competition Commission of India (“CCI”) violated the Constitutional separation of powers between the executive and judiciary. A single Member who was appointed to the CCI in 2003 before the Supreme Court’s strictures were pronounced remained in office for nearly five years. But along with his skeleton staff, he could only engage in capacity building and competition advocacy without being able to take up any cases.

An amending Act was passed in 2007 to meet the Supreme Court’s objections. It provided for a Competition Appellate Tribunal (“Compat”) headed by a judge to hear appeals from CCI decisions, and to exercise powers regarded as the prerogative of the judiciary (awarding compensation or imprisonment). The amending Act also made extensive changes to the sections of the law dealing with mergers and anticompetitive practices. It was not until May 2009, however, that the government appointed a new seven-member CCI and brought into force sections of the Act that empowered it to initiate investigations and to hear cases relating to anticompetitive agreements and abuse of dominance. In September 2009, the MRTP Act was fi

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