Securities and Competition Law

Competition is a situation in a market in which firms or sellers independently strive for the buyers patronage in order to achieve a particular business objective for example: profit, sales, market share (World Bank 1999)

 Competition law has been substantially internationalized and the US model is followed globally. Presently recommendations about the competition law for the neo-liberal business economy are being made by two internationally famous organizations for the world economy –

  • The United Nations Conference on Trade and Development (UNCTAD)
  • The Organization for Economic Co-operation and Development (OECD)

An Act to give, keeping in view of the economic development of the country, for the establishment of a commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interest of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.

EVOLUTION OF COMPETITION LAW

From 1969 to 2003 government provided the regulation to the monopolistic trade for the first time by virtue of the enactment of this MRTP Act. The Act advocated for the prohibition of the Monopolistic and Restrictive Trade Practices.

The ordinance was replaced by the Competition (Amendment) Bill, 2009 which was passed by the Parliament of India on 14 December, 2009 by Rajya Sabha. The bill was converted into an Act.

The Ministry of Corporate Affairs, Government of India had moved a Competition (Amendment) Bill, 2012 on 10 December, 2012 in the upper House of Parliament to amend the Competition Act further, with a view of fine tuning of the provisions of the Competition Act.

OBJECTIVES OF THE COMPETTION ACT, 2002

The competition Act, therefore seeks to:

  • Ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on competition in markets in India
  • Promote and sustain competition in market.
  • Protect the interest of consumers
  • Ensure freedom of trade carried on by other participants in markets.

To achieve these objectives, the Act prohibits anti-competitive agreements, prohibits abuse of dominant positions and regulates combination

ENERGY SECURITY AND COMPETITION POLICY:

Organization for Economic Co-operative and Development (OECD) competition committee debated energy security and competition policy in February 2007. This document includes a background note by Ms. Sally Van Siclen for the OECD, written submission from Brazil, the Czech Republic, France, German, Italy, Japan, Korea, Lithuania, the Netherland, Norway, Portugal, the Russian Federation, Spain, Sweden, Switzerland, UK, US, the European Commission, as well as papers by the MM. Ian (IEA) and summarize of discussions.

The discussion began by addressing the questions of the meaning and importance of energy security and the determinants of energy security, particularly as they relate to competition policy.

It continued in dealing with gas supply, transportation and distribution, addressing 5 aspects of energy security:

  • Role of substitutes for natural gas, role of regulation in promoting
  • How to promote an adequate level of infrastructure investment
  • Role of unbundling in fostering competition
  • Role of storage capacity in system efficiency
  • The determinants of entry into merchant sales of natural gas[1]

INSIDER TRADING AND ITS IMPLICATION

It is the trading of a public company’s stock or other securities (such as bonds or stock options) by individuals with access to non public information about the company.

An understanding of the implication of insider trading can only be achieved by analyzing conflicting perceptions of what is meant by inside or privileged information. Empirical evidence on insider trading, mainly reflecting United States experiences, challenges assumptions not only about the impact of insider trading but also the efficiency of financial markets. There are hierarchies of market participants and rules on insider trading capable of practical implementation will only change the rankings. Company have a property interest in their inside information and should bear the responsibility fcor its use.

MERGER AND COMPETITION LAW

Mergers and Acquisitions (combinations) mean any situation in which the ownership of two or more enterprises is joined together. In India Mergers are regulated under the Companies Act and also under the SEBI Act With the enactment of the Competition Act in 2002, Mergers also come within the ambit of this legislation.

Mergers also include amalgamation and acquisition of shares and control over the assets and the voting rights of an enterprise. Merger is a kind of event which brings tremendous change in the management of the affairs of one enterprise by another enterprise.

MARKET DISRUPTORS IN THE INDIAN MARKET

Digital Disruption is now a major force reshaping the new era for India. From being a laggard at the start of the dotcom boom in the 1990’s, India has now emerged as a leader in digital innovation. The rapid rise of digital disruption in India, its huge potential across industries, and the unique advantages of digital players, mean that every company must put digital at the heart of their future growth strategy.

DEVELOPMENT OF THE ESSENTIAL FACILITIES DOCTRINE IN THE INDIAN MARKET

The essential facilities doctrine (sometimes also referred to as the essential facility doctrine) is a legal doctrine which describes a particular type of claim of monopolization, made under competition laws. In general, it refers to a type of anti-competitive behavior in which a firm with market power uses a “bottleneck” in a market to deny competitors entry into the market. It is closely related to a claim for refusal to deal.[2]

INSOLVENCY AND BANKRUPTCY CODE, 2016

An act is to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms, and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration on the order of priority of payment of government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. 


References:

  • United states v. terminal railroad association
  • Investopedia
  • OECD report 2007
  • The companies act, 2013
  • The insolvency and bankruptcy code, 2016
  • The companies act, 1956
  • Economic blogs
  • Online library
  • Black law’s dictionary

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