1 ABA Spring 2009 Meeting- Section of International Law Panel on Antitrust in the East Presentation on Indian Competition Act— Abuse of Dominance Vinod Dhall, DHALL LAW CHAMBERS, India In co-operation with LINKLATERS LLP

2 What is dominance? Position of strength in relevant market enabling enterprise to: –Operate independently, or –Affect competitors, consumers, market in its favour Factors to be considered include: –Market share; no threshold prescribed –Entry barriers –Size and resources of enterprise –Size and importance of competitors –Vertical integration –Countervailing power –Others

3 Abuse Dominance itself not prohibited, but is objective condition or abuse Abuse of dominance by enterprise (or by group) prohibited Following practices shall be abuse : –Imposing unfair or discriminatory condition or price –Limiting production, technical or scientific development –Denial of access –Supplementary, unconnected obligations –Using dominance in one market to enter/protect other market –Predatory pricing

4 Remedies Cease and desist order Penalty up to 10% of turnover ( global) Order for division of dominant enterprise Any other order / direction Injured parties may bring follow-on damages claims before Appellate Tribunal Commission can punish for contravention of its orders/ directions Individual employees also liable No private enforcement

5 Comments Wording similar to EC Art 82 But, list of abuses is exhaustive Formulation is form based But, includes ‘meeting competition’ defence Predatory pricing- no recoupment requirement No case law yet Direction of future enforcement? –a form-based approach, or –competitive impact of unilateral conduct, –based not only on competitive factors

Vinod Dhall, Dhall Law Chambers, Dewan Manohar House, B-88, Sector 51, Noida, U.P., India Phone: , Fax: