 "Ashok Bhushan")
The inclusion of sustainability within competition law has the potential to spur innovation, the development of cleaner technologies, renewable energy sources, and sustainable solutions across various industries, said the National Company Law Appellate Tribunal (NCLAT) Chairperson Ashok Bhushan during his keynote address at the 8th Brics International Competition Conference 2023 in Delhi.
“Sustainability stands as another primary concern in the 21st century. Many countries have committed to international accords and frameworks, including the United Nations sustainable development goals and various agreements. Businesses may adopt strategies that harm the environment and disregard the welfare of future generations,” he said.
He emphasised that this is where competition law must step in.
“Finding the right balance to promote sustainability and competition is crucial. Fair access encourages innovation and competition,” he said.
Discussing how digital technologies have transformed the market landscape in 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 stemming from information asymmetry and an imbalance in bargaining power.
“India has joined a league of nations that have recognised that, regardless of the purported benefits of these platform-centric markets, strong antitrust enforcement is an essential element of overall public policy designed to govern these companies, striking a delicate balance between allowing digital platforms to innovate and grow while preventing anti-competitive practices that harm consumers and businesses,” he added.
He further said that Brics countries should come together to develop a robust mechanism for regulating digital markets.
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“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 stay informed about regulatory developments in other jurisdictions,” he said.
Highlighting the importance of Competition Law, he stated that it plays a crucial role in shaping the behaviour of businesses, whether it involves business contracts, mergers, takeovers, coordinated actions, pricing behaviour, or incentives for improvement and innovation.
“Competition Law has assumed great importance in monitoring national and international markets, and as businesses grapple with the implications and impact of competition law, they need to be aware of the consequences and significance of its provisions,” he added.
“Strong antitrust enforcement is an essential element of the overall public policy design governing these companies,” he further stressed.
Discussing the history of monopoly in the market, he pointed out that concerns about market power and cartels existed well before the 20th century. “Descriptions of the dangers of monopoly can be found in ancient Greek texts as well as in The Bible. In 1776, Adam Smith warned against the negative effects of monopoly, both private monopolies and those sponsored by the government,” he stated.
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 in St Petersburg, Russia. Given these facts, conferences and meetings like the current one are crucial for cooperation among Brics competition authorities, facilitating the exchange of ideas,” he said.
He also highlighted that Brics economies are in varying stages of transition, in which the state is relinquishing its dominant role in economic matters to the markets.
“Free and fair competition is one of the pillars of an efficient market economy. However, a free market is susceptible to malpractices by some players, which, if left unchecked, can negate the gains of competition,” he said.
Regarding NCLAT’s role, Justice Bhushan mentioned a case in which NCLAT upheld the Competition Commission of India’s 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 set aside four directions issued by the competition watchdog that the technology giant was supposed to comply with.
