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ABA Spring 2009 Meeting- Section of International Law

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. What is dominance?.

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ABA Spring 2009 Meeting- Section of International Law

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  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

  6. Vinod Dhall, Dhall Law Chambers, Dewan Manohar House, B-88, Sector 51, Noida, U.P., India-201301 Phone:+91-120-4547551, Fax:+91-120-4547550 Vinod.dhall@dhall-lawchambers.com, dhall.vinod1@gmail.com

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