Volume XIII Issue II

This volume is considered to be published in June 2024

Articles

 

Merger Control & Competition (Amendment) Act, 2023: Analysing the Amendment & Advancing Post-Amendment Considerations for the Commission for an Immaculate Combination Regime

In the article titled, “Merger Control & Competition (Amendment) Act, 2023: Analysing the Amendment & Advancing Post-Amendment Considerations for the Commission for an Immaculate Combination Regime,” the author examines the significant changes brought about by the Competition (Amendment) Act, 2023, particularly from the perspective of mergers and acquisitions (“M&A”). These amendments mark a new era in India’s competition law regime, increasing the role of the regulator and the transaction costs for involved parties. The paper identifies practical challenges in implementing the deal value threshold (“DVT”), such as its efficacy and the additional administrative burden on the CCI. The author argues that while the overhaul of the merger control regime is a positive step, there are ambiguities in the implementation of new definitions and provisions. The paper conducts a multi-jurisdictional analysis and reviews CCI’s decisional practices to propose a future roadmap for regulating combinations. Additionally, the paper discusses the Draft Regulations on Combinations, 2023, to anticipate the final combination framework. The author emphasizes the need to tailor regulations to the Indian market, while incorporating international antitrust best practices to promote fair competition and ease of doing business.

A ‘Material’ Solution: Material Influence as a Standard to Combat Common Ownership Concerns

In the article titled, “A ‘Material’ Solution: Material Influence as a Standard to Combat Common Ownership Concerns,” the author examines the introduction of the “material influence” standard codified by the 2023 Amendment to the Competition Act, 2002, particularly focusing on its potential to address concerns regarding common ownership. Common ownership, the practice where an entity holds investments in multiple rival firms purely for non-strategic purposes, has raised concerns about reduced competition and tacit collusion. The paper proposes that with suitable modifications and notification of delegated legislation under the new provision of the 2023 Amendment Act, the material influence standard can effectively address these concerns in India.

Determining Urgency in Compulsory Prelitigation Commercial Mediation

In the article titled, “Determining Urgency in Compulsory Prelitigation Commercial Mediation,” the author delves into the intricacies of determining urgency in compulsory pre-litigation commercial mediation, as mandated by Section 12A of the Commercial Courts Act. While the Act requires litigants to attempt settlement through mediation before initiating a lawsuit, it provides an exception for suits seeking urgent interim relief. The author identifies and critically analyses three conflicting approaches adopted by various High Courts regarding the interpretation and application of this exception. Drawing from the landmark judgment of Patil Automation v. Rakheja Engineers, which affirmed the mandatory nature of pre-litigation mediation under Section 12A, the article emphasizes the importance of courts adhering to the intent of reducing judicial workload and docket explosion by directing suits to mediation. The author advocates for a rigorous assessment of urgency claims, an approach that aims to prevent litigants from misusing the exception and undermining the mandatory nature of pre-litigation mediation, as upheld by the Patil Automation ruling.

Horizontal and Vertical Protection of Copyright in Stand-up Comedy

In the article titled, “Horizontal and Vertical Protection of Copyright in Stand-up Comedy,” the author delves into the intricate landscape of copyright protection in stand-up comedy, addressing the burgeoning popularity of the genre on streaming platforms and live performances. Despite its widespread appeal, stand-up comedy lacks specific legal safeguards, necessitating reliance on India’s Copyright Act, 1957, and its jurisprudence. The article explores how stand-up comedy fits within this legal framework, examining two key dimensions: horizontal protection, dealing with copyright issues among comedians, and vertical protection, focusing on conflicts between comedians and producers. Highlighted by the recent controversy involving comedian Vir Das, the author provides a comparative analysis with US precedents and proposes future directions for the industry.

The Disjunction Between Custom and Formal Law: Erosion of Matrilineal Succession in India

In the article titled, “The Disjunction Between Custom and Formal Law: Erosion of Matrilineal Succession in India,” the authors investigate the clash between traditional customs and formal law, specifically focusing on the erosion of matrilineal succession in India. Tribal communities, often isolated and self-sustaining, maintain unique cultural practices like matrilineal succession, where ancestral resources pass to female descendants, and identity is inherited through the mother. Focusing on the Khasi and Garo societies in Meghalaya, the paper argues that the limited power women gain through matriliny is undermined by the Indian courts’ colonial interpretation of customary laws, requiring them to be ‘ancient, certain, and reasonable.’ This interpretation, along with interactions with formal legal structures like land reforms and codified personal laws, further weakens these tribal customs and imposes external gender norms.

Exploring the Role of Motive in Insider Trading: A Case Study of SEBI v. Abhijit Rajan and Its Implications for India’s Legal Framework

In our next article titled, “Exploring the Role of Motive in Insider Trading: A Case Study of SEBI v. Abhijit Rajan and Its Implications for India’s Legal Framework,” the author examines the role of profit motive in insider trading within the Indian legal context, focusing on the landmark case, SEBI v. Abhijit Rajan. This case has significantly influenced insider trading law in India, highlighting the challenges of the current legal framework, particularly the Prohibition of Insider Trading Regulations, 2015. The SEBI v. Abhijit Rajan case introduced the motive of financial gain as a critical element, prompting a reevaluation of the legal approach to insider trading. The paper analyses legal precedents to understand the complexities of profit-driven intent and the stringent criteria for defining sensitive information. The author argues for updated regulations to balance market integrity with fair treatment of business practices, calling for clear guidelines to assess profit motives and avoid unjust penalization.

The Structural Role of Private Enforcement in Digital Markets: An Indian Competition Law Perspective

In the article titled, “The Structural Role of Private Enforcement in Digital Markets: An Indian Competition Law Perspective,” the authors analyse the role of private enforcement in India’s digital markets, particularly concerning consumer data and privacy within competition law. As Big Tech’s influence grows, regions like the EU, UK, and US have introduced new legislation, leading India to consider the Digital Competition Act. However, India has largely ignored private enforcement for consumer compensation claims. This article argues for the inclusion of mechanisms for antitrust damages in the upcoming Act. It reviews current provisions, identifies their shortcomings, and suggests structural improvements. The authors herein propose increasing legal guidance and expanding avenues for compensation to deter Big Tech’s abusive practices, aiming to enhance private enforcement without undermining public systems.

Assailing the Tenability of Section 122 of the Indian Evidence Act: Traversing Through the Troubled Waters

Finally, in the article titled, “Assailing the Tenability of Section 122 of the Indian Evidence Act: Traversing Through the Troubled Waters,” the authors examine Section 122 of the Indian Evidence Act, 1872, which provides marital communication privilege to protect marital privacy and uphold marriage as an institution. The article discusses various deficiencies within the provision and proposes addressing these issues by introducing additional exceptions inspired by foreign jurisdictions. By critiquing case law from the UK, USA and India, the authors provide a comparative analysis and suggest adopting progressive developments from other countries. The article emphasizes limiting the privilege’s impact on judicial information-seeking rather than advocating for its complete removal.