Right balance to promote sustainability, competition is pertinent: NCLAT


Incorporation of sustainability into competition law has the potential to stimulate innovation, the development of cleaner technologies, renewable energy sources, and sustainable solutions across various industries, National Company Law Appellate Tribunal (NCLAT) Chairperson Ashok Bhushan said on Thursday.

He was delivering the keynote address at the eighth BRICS International Competition Conference 2023 in Delhi.

“Sustainability stands as another principal concern in the 21st century. Numerous countries have pledged to international accords and frameworks including the UN sustainable development goals and various agreements. Businesses may adopt strategies that adversely affect the environment and neglect the welfare of future generations,” he said.

He said that this is where competition law has to step in. “The right balance to promote sustainability and competition is pertinent. Fair access promotes innovation to compete,” he said.

Talking about how digital technologies have transformed the market landscape across the country, he said that this critical gateway, the position of platforms and their control over data and market access are giving rise to a range of issues emanating from information asymmetry and imbalance in bargaining power. “India has joined a league of nations that have recognised that irrespective of purported benefits of these platform-centric markets, strong antitrust enforcement is an essential element of overall public policy designed to govern these companies in order to strike a delicate balance between allowing digital platforms to innovate and grow while preventing anti-competitive practices that harm consumers and businesses,” he said.

He said that BRICS countries should come together to develop a robust mechanism for regulating digital markets. “It has to be recognised that these markets are global in nature, hence international cooperation and exchange will be necessary to reduce the possibilities of regulatory arbitrariness and to keep abreast of regulatory developments in other jurisdictions,” he added.

Highlighting the importance of Competition Law, he said it plays an important role in shaping the behaviour of businesses, whether it’s business contracts, mergers, takeovers, coordinated actions, pricing behaviour, or incentives to improve and innovate. “Competition Law has assumed great importance in monitoring national and international markets and as businesses struggle to come to terms with the implications and impact of Competition Law, they require awareness of the impact and significance of the provisions of the law,” he said.

“Strong anti-trust enforcement is an essential element of the overall public policy design governing companies,” he added.

Delving into the history of monopoly in the market, he said that interest in the issues of market power and cartels arose well before the 20th Century. “Descriptions of the dangers of monopoly can be found in ancient Greek written sources as well as in the Bible. Adam Smith in 1776 warned against the negative effects of monopoly, both private monopoly and monopolies sponsored by the government,” he said.

BRICS is an association of five major emerging economies, namely Brazil, Russia, India, China, and South Africa. A similar cooperation exists between BRICS competition authorities. “A Memorandum of Understanding between the competition authorities of BRICS was signed on May 19, 2016, during the international legal forum held at Saint Petersburg, Russia. In light of the above facts, conferences and meetings such as the current meeting are very important for cooperation among the BRICS competition authorities, facilitating the exchange of ideas,” he said.

He also pointed out that BRICS economies are in varying degrees of transition in which the state is relinquishing the driving seat in economic matters to markets. “Free and fair competition is one of the pillars of an efficient market economy. However, a free market is prone to malpractices by some players, which if unchecked, may nullify the gains of competition,” he said.

Talking about how NCLAT has played a role, Justice Bhushan talked about the case in which NCLAT had upheld the Competition Commission of India (CCI) order imposing a penalty of Rs 1,337.76 crore on Alphabet-owned Google for misusing its dominant position in the Android mobile device ecosystem but has set aside four directions of the competition watchdog that the tech giant was supposed to comply with.


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