Competition Advisory Services (India) [COMPAD] LLP And Khaitan & Co. Hosts Global Webinar On Digital Competition Law

Competition Advisory Services (India) [COMPAD] LLP and Khaitan & Co. hosted a global webinar titled ‘Competition Law Townhall’ on the topic ‘Digital Competition Law: International Perspective with special reference to Asia’ on 7th December 2023 in virtual mode. The distinguished panelists included Mr. Dhanendra Kumar, IAS (retd.), Chairperson, COMPAD and First Chair, Competition Commission of India (CCI); Mr. Manas Kumar Chaudhuri, Partner, Khaitan & Co; Ms. Kala Anandrajah, Partner and Head - Competition, Antitrust and Trade; Lead Partner - Corporate Governance, Rajah & Tann, Singapore; Mr. Atsushi Yamada, Partner, Anderson Mori & Tomotsune, Japan and Mr. Pranjal Prateek, Partner, Khaitan & Co.  BW Legal was the Media Partner for the event.

Mr. Manas Kumar Chaudhuri introduced the topic and the panelists and also moderated the webinar. He mentioned the common linkages that the countries, like India, Japan and Singapore and other ASEAN countries have, concerning the digital markets. Competition law in digital space is the talk of every competition agency round the globe. He suggested a deliberation upon the convergence among global regulators. He also mentioned the government's consideration to create a separate digital competition law as the deliberations of the Committee on Digital Competition Law (CDCL) are ongoing.  

In his address, Mr. Dhanendra Kumar spoke about India’s rapidly growing digital economy, India Stack and various digital initiatives like the UPI fintech regime. He briefly explained the evolution of competition law in India, his experience with the Commission as its First Chair and that the CCI has come of age and became a mature regulator in about a decade. He highlighted the approach of CCI in dealing with traditional and digital markets. He highlighted the unique characteristics of digital markets and the role of the CCI's Digital Markets and Data Unit (DMDU) in regulating these markets. He also discussed the need for digital markets regulation in India, referencing recommendations from the Parliamentary Standing Committee on Finance's 53rd report. He discussed India’s app store economy and antitrust issues therein, including pre-installation of mobile apps; in-app purchases, app store commissions, etc. H He concluded by saying that regulators need to cope with changing market dynamics and detect practices against the objectives of competition law.  

In his address, Mr. Atsushi Yamada shared his views on the approach of the Japanese authorities, including the Japan Fair Trade Commission (JFTC), and government departments. JFTC has the power to review every kind of M&A irrespective of the thresholds. With increasing killer acquisitions, JFTC has been active in reviewing them and possibly penalizing them when necessary. Competition is very rapidly evolving in the digital markets. The JFTC is also active in conducting market studies, wherein it gathers information from relevant stakeholders, highlights major concerns and reviews them. This acts as a tool to raise awareness about antitrust issues in the digital economy among consumers. He spoke about the Digital Markets Competition Headquarters (DMCH) and the new Transparency Act of Japan. The Act designates digital platforms to comply with the provisions of the Act which aims towards disclosures by parties from a competition law viewpoint.  

In her address, Ms. Kala Anandrajah shared her views on the competition law regime in ASEAN countries with special reference to Singapore. She discussed some key antitrust issues like interoperability, self-preferencing, big data, etc. in digital markets, and specifically sectors like e-commerce and payment systems. There are multiple issues to consider, such as whether there is a clear harm, whether new regulations need to be introduced, or whether existing laws need to be updated. The answers to these questions are not easy and may vary by country. She also discussed the common issues of ex-ante and ex-post regulation across jurisdictions. She emphasized the importance of mergers & acquisitions in the digital economy.  

In his address, Mr. Pranjal Prateek shared his views on the cases in the digital market in India.  He traced back the origins of the digital enforcement in India to the proceedings against Google’s web search in 2012, and the issue of protracted proceedings surrounding the current system. He noted that the Ministry of Corporate Affairs (MCA) formulated the Competition Law Review Committee (CLRC) to review the efficacy of the current competition law regime in India. During the time of CLRC, separate law for digital markets wasn’t felt as cases were also minimal, and the digital economy was at a nascent stage as compared to what it is now. From 2018 onwards until now, the cases in digital markets have increased, with rapidly increasing digitization. In India, there is a consensus on differential treatment of traditional and digital markets. He mentioned that if we trace digital market cases before CCI, it has taken multiple years to adjudicate, and some cases are still pending in High Courts/Tribunals. He stated India is uniquely positioned with rapid innovation, growing startup economy and investment in technology in India and therefore, a hard-handed approach towards digital markets would have a chilling effect.  

The panelists also discussed the legal mandate of CCI to enter into international cooperations and the latest MoU undertaken by the CCI with JFTC. They highlighted CCI’s market studies in sectors like e-commerce, telecom and how it has led to investigations by the Commission. They discussed that the ex-post vs. ex-ante debate is a ‘work-in-progress’, and concerns of the EU are different from individual jurisdictions like India, US, Japan, Singapore, etc. They also discussed that countries need to do a ‘balancing act’ to regulate digital markets and learn from each other while understanding and maintaining the unique needs of the respective countries. The objective of competition law is towards economic advancement of the economy and hence, the regulation of the digital economy should be in sync with this objective.  

In conclusion, there has to be a balancing act between the regulation of digital markets and freedom to innovate in competition law regimes around the world.