No Delaying Business Mergers: Ex-CJI Tells CCI

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New Delhi, Mar 15 (UNI) Acknowledging that India is notorious for law-related ''delays,'' former Chief Justice A S Anand today stressed handling applications for business mergers ''in the shortest possible time.'' Opening an international conference on India's New Merger Notification Regime, Justice Anand held ''that international transactions or mergers and acquisitions cannot be allowed to be indefinitely held back.'' That was his advice to the Competition Commission of India, which was set up in October 2003 but is yet to begin enforcing the Competition Act 2002.

Hundreds of experts from around the world have descended on the Capital to discuss today and tomorrow India's competition law regime and suggest ways to make it effective.

Justice Anand said setting up a competition authority ''is only half the job done... Let the government and the CCI evolve mechanism which is both cost and time effective.'' The event is sponsored by the International Bar Association and the Bar Association of India and co-supported by the American Bar Association and the Confederation of Indian Industries.

Participants include acting CCI Chairman Vinod Dhall and Director General Amitabh Kumar and their counterparts from the United States, Britain, the European Union, Australia and Canada.

Justice Anand suggested looking at international experience and practices. ''Where there is a need for statutory intervention of CCI, the applications should be decided in the shortest possible time- frame for the reason that international transactions or mergers and acquisitions cannot be allowed to be indefinitely held back.'' In reply to a question on the Conference sidelines, Justice Anand hoped delegates will also consider the role employees can play in exposing wrong.

Asked about employees' input in evaluating bonafide transactions, Justice Anand voiced hope that participants will take up all issues, including hearing employees, especially when there are allegations about malafide and there is doubt about transparency.

According to published accounts, the first Enron expose was a view from the inside by a former employee with a focus on the final months leading to Enron's demise.

In his inaugural address, justice Anand suggested clarifying the structure and length of the merger review process. ''There should be clarity about when and which notifications should be issued.'' Dhall brought delegates up to date on efforts in putting together India's new competition regime, which is ''still in its infancy.'' But he pointed put that the 2007 Act ''has changed the voluntary notification system to a mandatory approval system.'' Dhall made it clear that cross-border mergers having no effect in India would have to be notified to the Commission.

Dhall underscored the ''vast difference'' between the Competition Act and the foreruner "Monopolies and Restrictive Trade Practices Act. ''The new Act is integral to a market economy.'' Conference sponsors said expert groups set up by them have studied some provisions of the Competition Act, 2002-- as amended in 2007-- and draft Regulations 2008.

Expert views on global ramifications of the Indian competition law have been submitted to India's Corporate Affairs Ministry as well as to the Commission.

The Commission could not be ''duly constituted'' under the Competition Act 2002 due to a legal challenge before the Supreme Court. The judgement came in January 2005.

The Act was amended two years later as the Competition (Amendment) Act 2007 and provides that the Commission consist of a Chairperson and between two and six other members.

It also entails a Competition Appellate Tribunal to hear and decide appeals against the Commission's orders and decide matters of compensation.

At present, the Commission has only one Member although action has been initiated to duly constitute the Commission and the Appellate Tribunal.

As Corporate Affairs Minister Prem Chand Gupta told Lok Sabha yesterday, the Commission is likely to become fully operational during 2008-09.

The conference is expected to draft regulations that address issues of interest to domestic and global businesses in India.

As one sponsor put it, the Act in its present form ''in some potential applications may be so burdensome as to discourage competitive conduct and investment.'' Sponsors say the Act requires notification of many transactions that have little likelihood of affecting competition in India ''in any material way.'' They also say that a requirement for a 210-day waiting period, especially for transactions having little local nexus or insignificant competitive impact in India, may deter transactions otherwise beneficial to India's economy.

Delegates also find the Act ''ambiguous and overly restrictive'' as to when notifications must be filed-- potentially depriving parties of opportunity to coordinate multiple notifications across different jurisdictions.

Kumar responded to concerns voiced by several delegates about the waiting period pointing out that it compared well with provisions in France and some other leading jurisdictions.

Foreign participants include British Office of Fair Trading Chairman Philip Collins, U S Federal Trade Commission International Affairs Office Director Randy Tritell, European Commission Competition Deputy Director General Nadia Calvino and Australian Competition and Consumer Commission General Manager Tim Grimwade.

Also attending are several World Bank experts.

UNI MJ MSJ BD1947

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