Ss. 5 and 6 of the Competition Act, 2002: Demystifying the competition implications of mergers and acquisitions in India

Abstract

Purpose

The jurisprudence concerning the regulation of mergers and acquisitions in the Indian context, from the perspective of competition law, is vast. Mergers and acquisitions in India have been regulated by the Indian Companies Act, the Monopolies and Restrictive Trade Practices Act and several sector specific legislations. After their notification in June 2011, Ss. 5 and 6 of the Competition Act read with the Combination Regulations of 2011 is the primary law that currently governs this field. In this paper, the authors, using a comparative perspective, analyse whether the present legal regime is effective in tackling the problems associated with regulating mergers in the Indian and international context. These problems include identifying the appropriate market definition, devising an effective test to weed out mergers that cause an “appreciable adverse competition”, understanding the roles of the multiple sector‐specific regulatory bodies, inter alia. It is concluded that the present regime does not deal with several of these important concerns.

Design/methodology/approach

The approach is both analytical and comparative. This paper provides an in‐depth study of a recent development in the law relating to mergers and acquisitions in India, which has cross‐border implications.

Findings

The paper shows that the application of Ss. 5 and 6 of the Indian Competition Act has serious flaws which need to be ironed out.

Originality/value

As the notification is recent, there is no substantive writing in the field. This paper bridges that gap. Also, this paper provides comparative perspectives, juxtaposing the Indian regime with the US and EU regimes where applicable.

Citation

Shroff, R. and Ambast, A. (2013), "Ss. 5 and 6 of the Competition Act, 2002: Demystifying the competition implications of mergers and acquisitions in India", Journal of Financial Crime, Vol. 20 No. 1, pp. 88-115. https://doi.org/10.1108/13590791311287382