A Comparative Study of India and China

A COMPARATIVE STUDY OF INDIA
AND CHINA
Presented By R. Ganesan FCA – Intern with Competition Commission of India, New

Delhi under guidance of Comdt. (JG) MM Sharma, Additional Registrar of CCI, New
Delhi. R. Ganesan, c/o Bhutoria Ganesan & Co., Chartered Accountants, S-9, Thadaram
Complex, 209A, Zone I, M.P.Nagar, BHOPAL -462 011
Email: bhutoria_ca@rediffmail.com
JUNE 2008
PREFACE
The Competition Law or the Anti Trust Law plays a pivotal role in maintaining healthy
competition in business and for economic efficiency and to the larger interest of the
consumer. The Competition Laws of member countries of WTO are made compatible
with the obligations of the country as a member of WTO.
India and China are the emerging economies of the World. The economic growth of India
and China are the highest in the World at present. The two Nations have improved the
bilateral trade to greater heights. China has emerged as the largest trading partner of India
in 2007, surpassing USA. Both the countries have vast domestic market. Like India has
enacted new Act Competition Act 2002 and amended in 2007 to replace MRTP 1969,
China has passed a comprehensive Competition Law called Anti Monopoly Law in 2007
and is made applicable with effect from 1-8-2008. In view of the growing economic
importance of India and China and the growing bilateral trade between them, a
comparative study on Competition Law may be useful.
As a student of Post Qualification course on International Trade Laws and WTO of the
Institute of Chartered Accountants of India, this study has been made as a part of
practical training.
I am grateful to the Competition Commission of India for accepting my request to be

associated as an intern.
I am highly indebted to Comdt. M.M. Sharma, Additional Registrar of CCI who is my

guide for this study. He has made in depth analysis of the study material. His guidance
has improved the quality and clarity of this study material.
I express my thanks to Shri Vinod K.Dhall, Acting Chairman of CCI, Shri Amitabh
Kumar IRS, Director General, Shri Augustin Peter, Economic Advisor, CCI for their
valuable guidance and encouragement.
I am extremely grateful to the Institute of Chartered Accountants of India, who has

provided me the opportunity to be with the Competition Commission of India and do this
study.
New Delhi, CA. R.GANESAN

June 23, 2008
COMPETITION LAW: A COMPARATIVE STUDY OF INDIA AND CHINA
EXECUTIVE SUMMARY
1. Both the laws adhere to the core principles ie Transparency, Non discrimination
and Procedural Fairness.
2. There are certain similarities of both the laws like : they extend to goods and
services, Government departments, have extra territorial reach, mandatory
notification requirements in case of combinations beyond threshold limits and
have time bound procedure for orders in case of combinations..
3. The procedure for inquiry is detailed in the Competition Act 2002, but such
procedures are not fully mentioned in the Chinese Anti Monopoly Law.
4. The threshold limits in case of combinations are mentioned in Competition Act

2002, whereas the limits will be notified by the State in the Chinese Law.
5. Agricultural producers, rural economic organizations engaged in agricultural

produces are exceptions to the application of the Chinese Law.
6. Where reasonable use of IPR is exempted in agreements in the Indian

Competition Act, 2002, legitimate use of IPR rights are exception to the
application to the Chinese Law.
7. In the Chinese Law in context to market dominance, collective dominance

concept exists.
8. There are certain unique features in the Chinese Law which are not found in the
Indian Competition Act 2002 like :
a) National security examination: In case of foreign investor in addition to
other tests of combination, national security shall also be examined.
b) There is specific article mentioning support for expansion and
competition
c) There is a separate Chapter in the Law for prohibition of abuse of
administrative power to restrict competition.
9. In the Indian Competition Act 2002, we have Appellate Tribunal as an appeal

forum. Under the Chinese context, there is no such separate forum, the
undertakings may prefer administrative reconsideration in certain cases or
alternatively bring administrative suit in certain cases.
10. Small Scale and Medium Enterprises are given preferred treatment in the Chinese
Law in case of agreements.
11. Trade Associations are also brought under the purview of the Chinese Law but
the monetary fine is comparatively less.
12. In the Chinese context the undertakings while proving that agreements are not anti
competitive they should also prove that their act can enable the consumers to
share the benefits. Similarly in case of concentrations if the undertaking prove
that the advantages of implementing the concentration exceed the disadvantages
or that the concentration is in harmony with public interest, the Anti Enforcement
Authority may decide not to prohibit the concentration.
DISCLAIMER
This study report has been prepared by the author as an intern under the internship
programme of the Competition Commission of India for academic purposes only. The
views expressed in the report are personal to the intern and do not necessarily reflect the
view of the Commission in any manner. This report is the intellectual property of the
Competition Commission of India and the same or any part thereof may not be used in
any manner, whatsoever, without express permission of the Competition Commission of
India.
New Delhi,
June 23, 2008 CA. R.GANESAN
COMPETITION LAW - A COMPARATIVE STUDY OF
INDIA AND CHINA
CHAPTERS
1. INTRODUCTION AND BROAD ANALOGY OF COMPARISON
2. FUNCTIONS OF THE COMMISSION AND THE ENFORCEMENT OF

THE LAW
3. EXTRA TERRITORIAL REACH
4. EXCEPTIONS, SIMILARITIES AND DISSIMILARITIES
5. UNIQUE FEATURES OF CHINESE LAW
6. ANTI COMPETITIVE AGREEMENTS
7. ABUSE OF DOMINANT MARKET POSITION
8. REGULATIONS ON COMBINATIONS
9. INQUIRY, INVESTIGATION PROCEDURE & ORDERS
10. APELLATE FORUM
11. EFFECTS ON RIGHTS ON IPR DEALT IN COMPETITION LAW
12. POWERS OF GOVERNMENT
13. PENALTIES
14. CRIMINAL PROSECUTION OR IMPRISONMENT

COMPETITION LAW – A COMPARATIVE STUDY OF INDIA AND CHINA
By R. Ganesan FCA as intern with Competition Commission of India under guidance of

Comdt. (JG) MM Sharma, Additional Registrar of CCI, New Delhi
ARTICLE PRESENTED IN JUNE 2008
Chapter 1 Introduction and broad analogy of comparison
India and China are the emerging economics of the World, China taking a lead over India
in many sectors and on different scales. India and China are the fastest growing
economies of the World.
o Together they represent 38% of World population

o At continued growth of economies, by 2025 China will become the largest and
India 3 largest economy in the World. (Together 39% of world output)
o Both the Nations have a huge domestic market
o Both the Nations have vast natural resources
(Source : Book titled”CHINDIA Rising” by Prof Jagdish N Sheth published by Tata

Mc Graw Hill ,2008 Pages 1-15)
The international trade of both the Nations are increasing at admirable rates. The foreign
direct investment in both the Nations is increasing, India and China bilateral trade
US$38.64 billion whereas that with USA is US$34.60 billion in calendar year 2007. The
growth rate in bilateral trade with China in the year 2007 was 53%. The targeted bilateral
trade between India and China by 2010 is US$60 billion. At present India’s bilateral trade
with USA is in surplus and with China it is deficit. (Source :The “Times of India” dated
17-1-2008)
China is in a transition stage from controlled or centrally planned economy to market

economy or socialist market economy. Liberalization process started in China in 1978
and got momentum in the 1980s , whereas liberalization process started in 1991 in India
and is getting momentum in the 2000s. China followed the economic progress path of
South Korea for establishment of large conglomerates as the best way for domestic
enterprises to obtain economies of scale and compete with MNE both domestically and in
international markets. In 1991 and in 1997 the State Council selected a national team of
120 large enterprise groups, primarily from industries considered to be of strategic
importance, to receive special treatment from the government. To enhance their
competitiveness, these national champions were granted tariff protection, special rights to
engage in international trade, access to foreign technology, easy loans from state owned
banks and other preferential treatment.
India is in transition stage from mixed economy to a liberalization to reach greater level
of market economy. Many of the large scale M&As are government managed. A govt
order in 2002 merged nine domestic airlines under the control of Civil Aviation
Administration for form 3 super groups. Under the 10th 5 year Plan in 2000-05 the govt
encouraged about 100 small automobile manufacturers to merge with 3 giants
Both the countries witnessed international takeovers in the recent past. To list them :
• 2004 China’s Lenovo acquired IBM’s personal computer division.

• 2005 China’s CNOOC’s’ bid for acquisition of Unocal of USA. (Transaction not
complete)
• 2005 US Carlyle Group’s takeover of Xuzhou Construction Mfg Group.
• 2006 India Mittal Steel’s acquisition of Arcelor Europe’s largest steel
manufacturer.
• 2007 Sino Steel India subsidiary of Sino Steel a State Owned company of China,
funded by China and the enterprise approved by Governments of India and China
• 2007 China National Chemical Corporation (Chem China) acquired Australian
Nufarm Ltd, a generic farm chemical company.
• 2007 India Tata Steel’s acquisition of Corus Steel
• 2007 India Hindalco’s acquisition of Novelis (largest North American sheet
aluminum company)
• 2008 India Tata Motors acquisition of Jaguar of UK
• 2008 Sino Steel’s bid to acquire Midwest Corporation Australia, an iron ore
prospecting company.
• 2008 Daiichi Sankyo, Japanese company’s proposal to acquire Ranbaxy of India.
ANTI TRUST LAW :
Anti trust law is the Magna Carta of economic laws of a Nation. The anti trust law’s
object is to encourage competition, so that the level of competition brings maximum
benefit to the consumers. The law restricts or prohibits certain conducts which are against
competition. They regulate the market to become more and more competitive.
Competition results in innovation, substitution, reducing cost of production, distribution,
economics of scale etc.
Both the countries have formulated a new competition law to be made effective. In China
the new competition law named “ Anti Monopoly Law is made effective from 1-8-2008.
In India the Competition Act 2002 was passed, amended in 2007, some sections have
been notified. Enforcement sections are not yet notified.
Both the law emphasizes on the fundamentals of anti competitive agreements, abuse of
market dominance and regulations on combinations. Indian law also is mandated on
advocacy of competition. .
The chronological legislative history in Competition or anti monopoly law of the two
countries is given below :
INDIA CHINA
1969 Monopolies and Restrictive 1980 Provisional Regulations
Trade Practices Act (MRTP) concerning Development and
Competition Act 2002 Protection of the Socialist
Competition Act amended in 2007 Competition Mechanism
First Enactment First Enactment : 1993 Anti Unfair
Competition Law (1-12-1993)
Till 1991 only private enterprises 1994 Creation of Fair Trade
were covered in MRTP. The Govt Bureau under SAIC with 3
issued notification in 1991 for divisions – prevention of unfair
bringing public sector trade practices, investigating
undertakings under the Act. monopolies and consumer
protection.
Second : 1998 Price Law (1-5-
1998)
2003 – First Notification
requirements on merger and
acquisition.
Administrator : State
Administration for Industry and
Commerce (SAIC)
State Development and Reform
commission is the enforcing
authority of 1998 Price Law
China was not having a single comprehensive law to deal all aspects of anti trust
transactions. There were different laws to deal different situations and the enforcing
authority for certain law are the same and for some other law they are different.
China – Transition from the objective in 1980 “ In economic activities, with the
exception of products managed exclusively by State designated departments and
organizations, monopolization or sole proprietary management of other products is not
allowed “ to in 1993 “ Safe guard healthy development of the socialist market economy,
encourage and protect fair competition, stop acts of unfair competition and to defend the
lawful rights and interest of operators and consumers”
The 1993 Anti Unfair Competition Law proscribed the following important aspects :
a) Trade mark counterfeiting.

b) Restrictions on use of related products imposed by public enterprises and other
legal monopolies.
c) Abuse of administrative power or restraints of free trade among regions by
Government agencies or their associates.
d) Bribery in business transactions.
e) Deceptive advertisement
f) Obtaining, disclosing or using trade secrets without consent of the owner.
g) Predatory Pricing ( Exceptions : sale of fresh products, the disposal of products
whose period of validity is about to expire, or of overstocked products, seasonal
reductions in prices, sale of products at reduced prices to pay off debts or due to
change in product lines or the closure of business.
h) Tied Sales.
i) Deceptive sales tactics such as prize draws
j) Uttering and disseminating false information that would hurt reputation of a
competitor.
k) Bid rigging.
1993 Act provides for criminal penalties only in cases of trademark infringements, and
bribery. In case of bid rigging there is criminal prosecution under the Public Tendering
Law in 2000.
In 1995 SAIC handled 194 anti trust cases and this went up to 2208 in 2001 and 1547 in
2002. SAIC promoted from Vice ministerial to ministerial level in 2001. It has
established cooperative relationships over 20 competition agencies from other countries.
Many provinces and cities have their own laws and regulations designed to counter unfair
competition. Price fixing was first prohibited by Guangdong Province in 1994
The three core principles of the law ie transparency, non discrimination and procedural
fairness are enshrined in both the laws. The object of Competition Act 2002 of India and
that of Anti Monopoly Law of China is as under :
Object of Indian Competition Act, 2002 :: (Preamble)
“To establish a Commission to prevent practices having adverse effect on competition, to

promote and sustain competition in markets, to protect the interests of consumers and to
ensure freedom of trade in markets in India.”
Object of Chinese Anti Monopoly Law ,2007 :: Article 1
“For guarding against or ceasing monopolistic conduct, safeguarding and promoting the
order f market competition, improving economic efficiency, protecting the interest of
consumers , public interest and promoting the healthy development of socialistic market
economy”.
Translation script of Chinese Anti Monopoly Law :
As such we do not have official English translation of the Chinese Anti Monopoly Law
of 2007. For the purpose of this study we have considered the English translation in
www.antitrustchina.com. Other English translations are available in other sites. The
translations differ in wordings like business operators/undertakings, business association/
business guild, justification/ justifiable etc. However the major changes notified by me in
other English translations are as under :
Relevant Matter www.antitrustchina,.com Other translations

Fine as per Article 46 and 1% to 10% of the total sales 1% to 10% of total sales
47 volume in the relevant revenue in the previous year
market
No of days in Article 26 90 working days 90 days (calendar)
Notification requirement Undertakings shall notify Lodged in advance
Article 21
In this study I have restricted the comparison only to the English translation of
www.antitrustchina.com as advised by my guide.
COMPETITION LAW : A COMPARATIVE STUDY OF INDIA AND CHINA
Chapter 2 Functions of the Commission and Enforcement of the Law
The Competition Commission of India established under the Competition Act 2002 has
the functions are duties of the Commission is to eliminate practices having adverse effect
on competition, promote and sustain competition, protect the interest of the consumers
and ensure freedom of trade. It will also take suitable measures in competition advocacy.
The Central Government may make a reference to the Commission on any matter in
formulating a policy in competition. The Law enforcing authority vests with the
Commission. The Director General is an arm of the Commission to assist the
Commission in conducting investigations. The Commission also shall take suitable
measures for competition advocacy. The Central Government may make a reference to
the Commission on any matter in formulating a policy on competition.
In the Chinese context, the Anti Monopoly Commission is basically for formulation of
policies on competition. The law enforcing authority does not vest with the Commission.
The law enforcement is to be carried out by the Anti Monopoly (Enforcement )
Authority. This authority will be established by the State Council and is under the State
Council. In Chinese context, the Policy and enforcement are being carried out by two
different agencies.
The Appellate Tribunal established under the Indian Competition Act is a separate body
to hear and dispose of appeals against any direction issued or decision made or orders
passed by the Commission and to adjudicate on claim for compensation. In the Chinese
context, there is no separate forum for appeal. The undertakings can apply to the Anti
Monopoly Enforcement Authority for administrative reconsideration only. Thus we see
that the appeal forum is the same as the Enforcement Authority.
The functions of the Commission under the two Acts are given as under :
INDIAN CONTEXT CHINESE CONTEXT

On Competition Policies
1. The Central Government may in The Anti-monopoly Commission, is in
formulating a policy on competition charge of organizing, coordinating, guiding
or any other matter, make a reference
to the Commission for its opinion on anti-monopoly work, performs the
possible effect of such policy on following functions:
competition.
2. The Commission shall give its (1) studying and drafting related competition
opinion on such reference within 60 policies;
days of receipt of reference. (2) organizing the investigation and
3. The opinion of the Commission shall
not be binding upon the Central assessment of overall competition situations
Government. in the market, and issuing assessment
(Section 49)
reports;
(3) constituting and issuing anti-monopoly
guidelines;
(4) coordinating anti-monopoly
administrative law enforcement; and
other functions as assigned by the State
(5)
Council. The State Council shall stipulate
composition and working rules of the Anti-
monopoly Commission. (Article 9)
Law Enforcement Authority
No enforcement Authority with the
It shall be the duty of the Commission to Commission
eliminate practices having adverse effect on
competition, promote and sustain competition,
protect the interests of consumers and ensure
freedom of trade carried on by other
participants, in markets in India: (Sec 18)
Competition Advocacy
The Commission shall take suitable measures No specific mention of advocacy policy
for the promotion of competition advocacy,
creating awareness and imparting training about
competition issues.(Sec 49(3)
Chapter 3 Extra Territorial Reach
In many circumstances an economic and commercial transaction taking place outside the
country may have an adverse effect in the country on competition or anti trust policies.
Simply because that any of the party or both the parties are out side the country may not
exclude the authority to conduct enquiry. Under the Indian context, In the Export Cartel
case of soda ash cartel in 1996 and the case of float glass in 1998 before the then MRTP
made the difference. In both the cases the MRTP commission issued interim injunction
on the American Natural Soda Ash Corporation (ANSAC) restraining it from exporting
soda ash to India alleging cartelization. In float glass case the MRTP Commission issued
an injunction against the Indonesian companies from exporting float glass to India. In
both the cases the Supreme Court of India observed that the MRTP Commission had no
extra territorial jurisdiction. The Court said that its jurisdiction would commence only
after the goods had been imported and a restrictive trade practice had subsequently taken
place. Based on Effects Doctrine theory the ambit of Competition Act shall cover acts
taking place outside India but having an effect on competition in India. Section 32 of the
Act deals in this regard. Similar provision is available in the AML of China Article 2 is
relevant in this regard. Whereas in the Indian context the section is elaborate, the article
in AML of China is simple but extensive.
The comparative stand of relevant sections of the Law is given below :
INDIAN CONTEXT (Sec 32) CHINESE CONTEXT (Article 2)

This Law shall apply to the conducts
The Commission shall, notwithstanding outside the territory of the People'
s
that,— Republic of China if they eliminate or have
(a) an agreement referred to in section 3 has restrictive effect on competition on the
been entered into outside India; or domestic market of the China.
(b) any party to such agreement is outside
India; or Refer article 3 in this regard :
(c) any enterprise abusing the dominant For the purposes of this Law,
position is outside India; or "monopolistic conducts" are defined as the
(d) a combination has taken place outside following: (1) monopolistic agreements
India; or
made between undertakings ; (2) abuse of
(e) any party to combination is outside India;
dominant market positions by undertakings
or
; and (3) concentration conducted by
(f) any other matter or practice or action undertakings that may have the effect of
arising out of such agreement or dominant eliminating or restricting competition.
position or combination is outside India,
have power to inquire in accordance with

the provisions contained in sections 19, 20,
26, 29 and 30 of the Act] into such
agreement or abuse of dominant position or
combination if such agreement or dominant
position or combination has, or is likely to
have, an appreciable adverse effect on
competition in the relevant market in India
and pass such orders as it may deem fit in
accordance with the provisions of this Act.
Chapter 4 Exceptions, Similarities and Dissimilarities
Under administration of any commercial or economical law exemptions and exceptions

are pralevent. Exemptions are directed against those economic transactions which are
absolutely not covered under any aspect of the law. No section can be extended to cover
the same. Also generally exempted categories are not acted up on otherwise by the
Government or Enforcement authority under the pretext of regulations or rules or orders.
Generally exceptions are for compliance of particular section under the law. Exceptions
under the Act may be many at various application stages. The comparative study of
exemptions and exceptions under both the law covers the entire law. Notably government
departments or public sector enterprises are totally exempted under both the Laws. Under
the Indian Competition Act 2002, there is territorial exemption ie the Act does not extend
to the state of Jammu & Kashmir. There is no such territorial exemption of the Anti
Monopoly Law of People’s Republic of China. It applies to all provinces of China.
First we study comparison of exceptions :
Indian context Chinese context

Sovereign functions of the Article 56 This law is not applicable to the ally or
Government including concerted actions related to the operation of
Departments of the Central
Government dealing with atomic production, processing, sales, transportation, and
energy, currency, defense and storage of agricultural commodities conducted by
space. These are not covered by
not extending the meaning of farmers or their professional enterprises.
enterprise u/s 2(h) This law is not applicable to conducts by
Article 55
undertakings to protect their legitimate
intellectual property rights in accordance with the
IP law and relevant administrative regulations;
however, this Law is applicable to the conduct of
undertakings to eliminate or restrict market
competition by abusing intellectual property
rights stipulated in the IP law and administrative
regulations.
SIMILARITIES IN LAW :
1. Both the law extends goods and services. [Sec3,4/ Article 12]
2. Extra Territorial Reach : Law extends to all actions taking place outside the
country but having effect on competition in the country. [Sec 32/ Article 2]
3. Time bound order in case of combinations (210 days in India and 180 days in
China) [Sec 6(2A)/Article 26]
4. Monetary fine or penalties for contravention of agreements and abuse of

dominance are linked to turnover. (In India max 10% of turnover, In China 1%
to10% of turnover) [Sec 27(b)/ Article 46 & 47]
5. Threshold limit exists for regulation of combinations [Sec 5/ Article 21]
6. Mandatory notification for mergers beyond threshold limits. [Sec 6(2)/ Article 21]
DISSIMILARITIES

The Law enforcing authority vests with the The Law enforcing authority is different
Commission. [Chapter IV Sec 18 to 39] from the Anti Monopoly Commission. It is
Anti Monopoly Enforcement Authority
under the State [Article 10]
In addition the Commission is mandated to No such provisions
take up advocacy functions. [Sec 49]
The Director General of Investigation is an The investigation is carried out by the Anti
arm of the Commission. He is appointed by Enforcement Authority. There is no
the Central Government. [Sec 16] separate Directorate. [Article 38]
There is an Appellate Tribunal to prefer There is no Appellate forum. The
appeal against the order of the Commission aggrieved party can prefer an
[Chapter VIII A sec 53A to 53U] administrative reconsideration from the
Enforcing Authority. [Article 53]
Group of enterprises concept explained for There is no such group of enterprises
dominance and combination. Group is on concept. It is only individual undertaking.
structural basis. [Explanation (b) to sec 5] However collective dominance concept
exists. [Article 19]
Chapter 5 Unique Features of the Chinese Law
There are certain unique features which are there in the Chinese law but no parallel in the
Indian Law. Such features are given below :
1. National security examination [Article 31]

In the case that national security is concerned, besides the examination on
concentration in accordance with this Law, the examination on national security
according to the relevant regulations of the State shall be conducted as well on
the acquisition of domestic undertakings by foreign capital or other
circumstances involving the concentration of foreign capital.
2. Support for Expansion and Competition :

Undertakings may concentrate when such an action is in accordance with the law
and adheres to fair competition and is a voluntary union that expands the scale of
operation and improves market competition. [Article 5]
3. Abuse of Administrative power

Separate chapter on abuse of powers by other administrative agencies to restrict
competition. [Chapter V]
4. Collective market dominance

Collective Dominance concept exists [Article 19 ]
5. Prove that consumers to share the interest
In respect of anti monopoly agreements, to claim exemption, the undertakings

must additionally prove that the agreement can enable consumers to share the
interests derived from the agreement, and will not severely restrict the competition
in relevant market. [ Article 15]
Chapter 6 Anti competitive Agreements
The objective of competition policy is to promote efficiency and maximize welfare and
thus, to create a conducive business environment in which the abuse of market power is
prevented mainly through competition. The focus of Competition or Anti Trust Law of
any country shall be on preventing anti competitive behavior of enterprises and protecting
the market from abuse. Three areas of enforcement provide the focus for most
competition laws in the member countries of WTO today namely anti competitive
agreements among enterprises, abuse of dominance and mergers or more generally
combinations among enterprises.
Some of the agreements firms enter into have the potential to restrict competition. Most
of the Countries in their Competition Law distinguishes horizontal and vertical
agreements between firms. Horizontal agreements are agreements between two or more
competitors that occupy the same stage of production chain and are in the same market.
Cartel is the best example in this category. Vertical agreements involve a purchasing or
selling relationship between firms, and may be pernicious if they are between firms in a
position of dominance. Most competitive laws view vertical agreements more leniently
than horizontal agreements because, prima facie, the latter are more likely to reduce
competition than are agreements between firs in a purchase – seller relationship. The
effect of the horizontal or vertical agreements on competition is judged on the basis of
two separate criteria viz per se rule and the rule of reason. The law distinguishes certain
agreements per se void or illegal.
The words horizontal and vertical agreements are not mentioned either in the Indian Law
or the Chinese Law. Similarly the word per se void is also not mentioned in both the
texts. In the Indian context, an agreement includes any arrangement, understanding or
concerted action entered into between parties. It need not be in writing or formal or
intended to be enforceable in law. In the Chinese context, "monopoly agreements" refer
to agreements, decisions or other concerted actions which eliminate or restrict
competition..
I COMPARISON ON STRUCTURING OF SECTIONS/ ARTICLES
PARTICULARS INDIAN CONTEXT CHINESE CONTEXT

Anti Competitive Agreements Section 3 Article 3
Horizontal Agreements Section 3(3) Article 13
Vertical Agreements Section 3(4) Article 14
Bid Rigging Explained u/s 3(3) See separate standing
order
Enabling Power to inquire agreements Section 19 Article 38
Procedure for Inquiry Section 26 Article 39 to 43
Orders of the Commission/ Section 27 Article 44
Enforcement Authority
II COMPARISION OF THE LAWS DEALING IN ANTI COMPETITIVE

AGREEMENTS
HORIZONTAL AGREEMENTS
Anti Competitive Agreements
Section 3(1) of Indian Competition Act mentions “ No enterprise or association of

enterprises shall enter into any agreements in respect of production, supply,
distribution, storage, acquisition or control of goods or provision of services, which
causes or is likely to cause an appreciable adverse effect on competition within
India”. There is no exemption and no scope for inquiry or investigation. Certain
agreements are specified under section 3(3) and besides agreements it covers “
practices and decisions” in the context. The agreements mentioned u/s 3(3) shall be
presumed to have an appreciable adverse effect on competition. Exception is given in
3(3) and not in 3(1). The Chinese context is straight forward, “Following monopoly
agreements prohibited”.
Under the Chinese Law the general clause is described in this way “ other monopoly
agreements confirmed by the Anti Monopoly Enforcement Authority under the State
Council”.
.
Presumption : Prohibited :
Any agreement entered into between enterprises

or associations of enterprises or persons or Article 13 Any of the following monopoly
associations of persons or between any person agreements among the competing
and enterprise or practice carried on, or decision
undertakings are prohibited:
taken by, any association of enterprises or
association of persons, including cartels, (1) to (5) or (6) other monopoly agreements
engaged in identical or similar trade of goods or as determined by the Anti-monopoly
provision of services, which—
(a) to (d) Authority under the State Council. For the
shall be presumed to have an appreciable purposes of this Law, "monopoly
adverse effect on competition and shall be
void agreements" refer to agreements, decisions
or other concerted actions which eliminate
or restrict competition.
(a) directly or indirectly determines purchase or (1) fixing or changing prices of

sale prices;
commodities;
(b) limits or controls production, supply, (2) Restricting output volume or sales
markets, technical development, investment or
volume of products;
provision of services;
(4) restricting the purchase of new
technology or new facilities or the
development of new technology or new
products;
(c) shares the market or source of production or (3) dividing the sales market or the raw
provision of services by way of allocation of
material procurement market;
geographical area of market, or type of goods or
services, or number of customers in the market
or any other similar way;
(d) directly or indirectly results in bid rigging or (5) Jointly boycotting transactions;
collusive bidding,
COMPARISON :
1. Price determination or fixing or changing of price is same. The word product is

not defined under the AML of China. In the Indian context the price
determination is for purchase or sale prices. The determination of purchase price
is wide under the Indian context.
2. Bid rigging is explained under the Indian Competition Act. No mention of the
word bid under the AMP. There is a separate Act in the Chinese context on bids
called “ Invitation and submission of Bids Law of China”
3. Under the Indian context, sharing the market or source or production is
mentioned. The source of production in general terms shall extend to production
facilities as such. It may extend to raw material market. However under the
Chinese context dividing the raw material procurement market is specially
mentioned.
4. Refusal to deal and group boycott are within limiting and controlling production
and investment. In the Indian context, refusal to deal is mentioned under vertical
agreements. Joint boycotting of transactions is specifically mentioned in the AML
of China.
III COMPARISION OF EXEMPTIONS

Following category of horizontal No separate exemption for horizontal
agreements are exempted: agreements as such.
Joint Venture agreements if such
agreements increase efficiency in
production, supply, distribution, storage,
acquisition or control of goods [Sec 3(3) ]
Following categories of agreements are Following categories of agreements can
exempted: be exempted:
o Exports from India (1)For the purpose of improving
[Sec 3(5)(ii)] techniques, researching and developing
o Agreements ( with reasonable new products;
restrictions) to protect intellectual (2) for the purpose of upgrading product
property rights [Sec 3(5)(i)] quality, reducing cost, improving
efficiency, unifying product models and
standards, or carrying out professional
labor distribution;
(3) for the purpose of improving
operational efficiency and enhancing the
competitiveness of small and medium-
sized enterprises;
(4) for the purpose of maintaining the
public welfare such as conserving energy,
protecting the environment and providing
disaster relief etc;
(5) for the purpose of mitigating serious
decrease of sales volume or excessive
stock during economic recessions;
(6) for the purpose of protecting the
legitimate interests of international trade
and foreign economic cooperation [Article
15]
IV For the sake of comparison the exemption categories under the Chinese Act is
com[pared to provisions of Sec 19(3) of the Indian Competition Act 2002. The
Commission shall have due regard while determining those agreements have adverse
effect in competition is mentioned in section 19(3)

Section 19 (3) Article 15An agreement among undertakings
The Commission shall, while determining shall be exempted from application of
whether an agreement has an appreciable articles 13 and 14 if it can be proven to be
adverse effect on competition under section 3, in any of the following circumstances:
have due regard to all or any of the following
factors, namely:—
(a) creation of barriers to new entrants in the No such comparison
market;
(b) driving existing competitors out of the No such comparison
market;
(c) foreclosure of competition by hindering No such comparison
entry into the market;
(d) accrual of benefits to consumers; No such comparison
(e) improvements in production or distribution (1) For the purpose of improving

of goods or provision of services; techniques, researching and developing
new products;
(2) for the purpose of upgrading product
quality, reducing cost, improving efficiency,
unifying product models and standards, or
carrying out professional labor distribution;
(f) promotion of technical, scientific and Clubbed in above
economic development by means of production
or distribution of goods or provision of services.
(3) for the purpose of improving operational
No special consideration for small and medium efficiency and enhancing the
scale enterprises competitiveness of small and medium-sized
enterprises;
Power to Central Government u./s 54 (a) to (4) for the purpose of maintaining the public
exempt by notification any class of enterprises welfare such as conserving energy,
if such exemption is necessary in the interest of protecting the environment and providing
security of the State or public interest disaster relief etc;
No such comparison (5) for the purpose of mitigating serious
decrease of sales volume or excessive stock
during economic recessions;
Power to Central Government u./s 54 (B) to (6) for the purpose of protecting the
exempt by notification any practice or legitimate interests of international trade
agreement arising out of and in accordance with and foreign economic cooperation foreign
any obligation assumed by India under any economic cooperation;
treaty, agreement or convention with any other
country or countries.
Exports of goods and services from India are
exempt u/s 3(5): right of any person to export No specific exemption for exports
goods from India to the extent to which the
agreement relates exclusively to the
production, supply, distribution or control of
goods or provision of services for such
export.
Exemption – Power to the Central other circumstances as stipulated by laws
Government and the State Council.
Power given u/s 54
VERTICAL
AGREEMENTS
Section 3(4) of the Indian Competition Act context refers to vertical agreements. The
words horizontal or vertical is nowhere mentioned in both the law. Article 14 of AMP of
China deals with vertical agreements. Comparison table is given below :

Any agreement amongst enterprises or persons Article 14 Any of the following agreements
at different stages or levels of the production among undertakings and their trading
chain in different markets, in respect of parties are prohibited:
production, supply, distribution, storage, sale or (1) to (3)
price of, or trade in goods or provision of
services, including—
(a) to (e)
shall be an agreement in contravention of sub-
section (1) if such agreement causes or is likely
to cause an appreciable adverse effect on
competition in India.
(a) tie-in arrangement; No such mention
"tie-in arrangement" includes any
agreement requiring a purchaser of goods,
as a condition of such purchase, to purchase
some other goods;
(b) exclusive supply agreement; No such mention
"exclusive supply agreement" includes any
agreement restricting in any manner the
purchaser in the course of his trade from
acquiring or otherwise dealing in any goods
other than those of the seller or any other
person;
(c) exclusive distribution agreement; No such mention
"exclusive distribution agreement" includes
any agreement to limit, restrict or withhold
the output or supply of any goods or
allocate any area or market for the disposal
or sale of the goods;
(d) refusal to deal; No such mention
"refusal to deal" includes any agreement
which restricts, or is likely to restrict, by
any method the persons or classes of
persons to whom goods are sold or from
whom goods are bought;
(e) resale price maintenance, (1) fixing the price for resale to a third
"resale price maintenance" includes any party;
agreement to sell goods on condition that (2) restricting the minimum price for resale
the prices to be charged on the resale by the to a third party; or
purchaser shall be the prices stipulated by
the seller unless it is clearly stated that
prices lower than those prices may be
charged.
General clause : No enabling clause for (3) other monopoly agreements as
generalization confirmed by the Anti-monopoly Authority
under the State Council.
COMPARISON
Exemption given under the Indian context are for exports (as described in above) and for
rights under Intellectual Property . Under the Chinese AML, exemptions for horizontal
and vertical contracts are same as given in previous paragraph. Under the Chinese AML,
IP Rights are covered by the AML to the extent they eliminative or restrict market
competition.
SPECIAL TREATMENT FOR SMALL& MEDIUM SCALE ENTERPRISES IN
BOTH HORIZONTAL AND VERTICAL AGREEMENTS IN THE CHINESE
ACT
Agreements for the purpose of improving operational efficiency and enhancing

competitiveness of small and medium sized enterprises are exempt.
The agreements are for the benefit of small and medium scale enterprises. There is no
need that small and medium enterprises are to be a party to such agreement.
Small and Medium scale enterprises in the Chinese context are on the basis of number of
employees, volume of sales and total assets
Chapter 7 Abuse of dominance Market Position
Competition law prohibits the use of market controlling position to prevent individual
enterprises or a group from driving out competing business from the market as well as
dictating prices. The concept of abuse of dominant position of market power refers to anti
competitive business practices in which the dominant firm may engage in order to
maintain or increase its position in the market. Under the Indian context a group of
enterprises can be taken as a single unit to determine market dominance. Under the
Chinese AML such an approach is not mentioned. In the Indian law to determine the
market dominance, several factors are to be considered including the enterprise market
share in the relevant market. There is no such minimum % of market share mentioned in
the Act, to consider the enterprise as a dominance enterprise. In the AML of China, a
defined % of market share of the enterprise in the relevant market is mentioned to be
assumed to have market dominance. The regulatory authority ie CCI will have the
freedom to tackle errant undertakings and encourage competitive market practices
regardless of whether the market consists of small or large players. Two things are utmost
important. First dominance has to be established and then abuse of dominance to be
established. Then the relevant market is another important issue in this regard. A relevant
market has two dimensions, the product market and geographical market. On the demand
side, the relevant product market includes all substitutes that the consumer could switch
to if price of the product being investigated were to increase. On the supply side, the
relevant market includes all producers who could, with their existing facilities, switch to
the production of substitute goods. The geographical dimension involves identification of
the geographical area within which competition takes place, whether local, national or
international. Some factors relevant to the geographic dimension are consumption and
shipment patterns, transportation costs, perishability of goods and existence of barriers to
the shipment of products between adjoining geographic areas. Relevant market , relevant
geographic market and relevant product market are defined under the Act.
2(r) “"relevant market" means the market which may be determined by the Commission with
reference to the relevant product market or the relevant geographic market or with reference
to both the markets;
2 (s) "relevant geographic market" means a market comprising the area in which the
conditions of competition for supply of goods or provision of services or demand of goods or
services are distinctly homogenous and can be distinguished from the conditions prevailing in
the neighboring areas;
2 (t) "relevant product market" means a market comprising all those products or services
which are regarded as interchangeable or substitutable by the consumer, by reason of
characteristics of the products or services, their prices and intended use;
An abuse is a conduct which does not constitute normal competition. Abuse of dominant
position of market power can vary widely from one sector to another. Abuses include :
charging unfair or excessive prices, price discrimination, predatory pricing, refusal to
deal or to sell, tied selling or product bundling etc. They prevent, restrict or distort
competition, in the relevant market. The abuse is an act of imposing unfair or
discriminatory condition or price, limiting production or technical or scientific
development, denying market access, concluding contracts of supplementary obligations
having no connection with subject of such contracts, entering or protecting other relevant
market. Whether an enterprise indulges in such practices has to be seen with reference to
normal enterprise practices. Deviation from normal practices resulting in weakening
competition is abusive.
Comparison is made on the applicability, determination of dominance position, enabling

to inquire, inquiry or investigation procedure and orders is given below :

Abuse of dominant position Section 4 Article 6
Enabling Power to inquire agreements Section 19 Article 38
Procedure for Inquiry Section 26 Article 39 to 43
Orders of the Commission/ Section 27 & 28 Article 44
II COMPARISION OF THE LAWS DEALING ABUSE OF MARKET

DOMINANCE
To determine market dominance group concept is mentioned in the Indian Competition

Law ie rather than individual enterprise, the CCI may determine whether dominance can
be established to a group. Group as explained is based on structure rather than sharing
relevant market. Under the Chinese context there is no scope for extending the
definition to group, undertaking is only mentioned. Reading of the AML suggests that the
Enforcement Authority can club maximum 3 enterprises, if the joint has more than ¾ of
the relevant market.
Group as defined under the Indian Competition Act explanation to section 5

"group" means two or more enterprises which, directly or indirectly, are in a position to —
(i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or
(ii) appoint more than fifty per cent. of the members of the board of directors in the other
enterprise; or
(iii) control the management or affairs of the other enterprise;
Hence the group for dominance under the Indian context can be only of above related
enterprises. The group definition cannot extend to totally unrelated enterprises in the
same market. In the Chinese context, they can combine maximum 3 enterprises in the
same relevant market, whether these 3 enterprises are related in any way or totally
independent.
A specific threshold limits to assume market dominance is not prescribed under the
Indian Law whereas these are specified in the AML of China. These are the two major
dissimilarities in both the Law. Otherwise the law are similar in determination of abuse
and prohibiting the same.
Article 17 of the Chinese Law mentions the prohibited market dominance behavior.

Abuse of dominant position : Article 17 : An undertaking with a
Section 4(1) No enterprise or group shall dominant market position shall not abuse its
abuse its dominant position dominant market position to conduct
following acts:
Determination of dominant position : Article 17
"dominant position" means a position of "dominant market position" refers to a
strength, enjoyed by an enterprise, in the market position held by undertaking that
relevant market, in India, which enables it to— can control the price or quantity of products
(i) operate independently of competitive forces or other transaction conditions in relevant
prevailing in the relevant market; or market, or can block or affect the access of
(ii) affect its competitors or consumers or the other undertakings to the relevant market.
relevant market in its favour. Article 19 Undertakings can be constructed to
have a dominant position if any of the
following conditions is fulfilled : (i) the
relevant market share of a one undertaking
amounts for1/2 in the relevant market; (ii)
the joint market share of two undertakings
amounts for 2/3 in the relevant market or
(iii) the joint market share of three
undertakings amounts for 3/4 or above. In
the case that the circumstance of the
undertakings fall under the conditions (ii) or
(iii) and any of the undertakings has a
market share of less than 10%, the
undertaking shall not be considered to have
dominant market position. .
See factors given in Article 18 :
There shall be an abuse of dominant position Article 17 Undertakings are prohibited from
if an enterprise or group the following behaviour that abuses their
Actions that shall be considered as abuse dominant market position : .
under the act :
(1) directly or indirectly imposes unfair or
discriminatory – 4(2)(a)
(i) Condition in purchase or sale of goods or (6) applying discriminating treatment on
services or prices or other transaction terms to trading
parties with equal standing, without any
justification;
(ii) price in purchase or sale (including (1) selling products at unfairly high prices or
predatory price) of goods or service buying products at unfairly low prices;
(2) selling products at prices below cost
without any justification;
(2) Limits or restricts 4(2)(b)
(i) production of goods or provision of
services or market theefor or
(ii) technical or scientific development relating
to goods or services to the prejudice of
consumers; or
3. Practices resulting in denial of market access (3) refusing to trade with trading parties
as a result of dominant position : without any justification;
1. indulges in practice or practices resulting in
denial of market access in any manner Sec
4(2)© or
2. makes conclusion of contracts subject to (4) Limiting trading parties to conduct deals
acceptance by other parties of supplementary exclusively with them or designated parties
obligations which, by their nature or according without any justification;
to commercial usage, have no connection with
the subject of such contracts; Sec 4(2)(d) or
3. uses its dominant position in one relevant (5) Implementing tie in sales without any
market to enter into, or protect, other relevant justification or imposing other
market. Sec 4(2)(e) unreasonable trading conditions. ;
General Clause Nil General clause
(7) other conducts determined as abuse of a
dominant position by the Anti-monopoly
Authority under the State Council
ESSENTIAL FACILITIES DOCTRINE (EFD)
Barrier to entry of new enterprises into the relevant market is a major restraint on the
working of competition. When an enterprise with dominance in the relevant market
controls an infrastructure or a facility that is necessary for accessing the market and
which is neither easily reproducible at a reasonable cost in the short term nor
interchangeable with other products/services, the enterprise may not without sound
justification refuse to share it with its competitors at reasonable cost. This has come to be
known as the essential facility doctrine (EFD). It has been recgonised that any application
of the essential facilities doctrine should satisfy the following :
1. The facility must be controlled by a dominant firm in the relevant market.
2. Competing enterprises should lack a realistic ability to reproduce the facility.
3. Access to the facility is necessary in order to compete in the relevant market. And
4. It must be feasible to provide access to the facility.
Subject to such conditions being satisfied, the Commission may under provisions of Sec
4(2)© of the Act , pass a remedial order under which the dominant enterprise must share
an essential facility with its competitors in the downstream markets.
Intellectual Property Rights :
While reasonable use of IPRs stand exempted from the provisions of anti competitive
agreements, no such derogation is available in case of abuse of IPRs in respect of sec 4.
They stand on equal footing with others in determination of abuse of dominance.
However under the Chinese Act, legitimate use of IPRs and no abuse of IPR is an
exception to monopolistic conduct.
The comparative methodology to determine dominant market position considering other

factors are given below :

Section – 19(4) : The commission shall, while The dominant market status shall be
enquiring whether an enterprise enjoys a determined according to the following
dominant position or not under sec 4 have due factors: Article 18
regard to all or any of the following factors
namely :
(a) market share of the enterprise; (1) the market share of the undertakings and
their competitive status in the relevant
market;
(b) size and resources of the enterprise; (3) the financial and technical status of the
undertaking;
(c) size and importance of the competitors; (4) the extent of the reliance on the
undertakings during transactions by other
undertakings ;
(d) economic power of the enterprise including (2) the ability of undertakings to control the
commercial advantages over competitors; sales market or the raw material purchasing
market;
(e) vertical integration of the enterprises or sale
or service network of such enterprises;
(f) dependence of consumers on the enterprise;
(g) monopoly or dominant position whether

acquired as a result of any statute or by virtue of
being a Government company or a public sector
undertaking or otherwise;
(h) entry barriers including barriers such as (5) the degree of difficulty for other
regulatory barriers, financial risk, high capital undertakings to enter the relevant market;
cost of entry, marketing entry barriers, technical
entry barriers, economies of scale, high cost of
substitutable goods or service for consumers;
(i) countervailing buying power;
(j) market structure and size of market;
(k) social obligations and social costs;
(/) relative advantage, by way of the

contribution to the economic development, by
the enterprise enjoying a dominant position
having or likely to have an appreciable adverse
effect on competition;
(m) any other factor which the Commission and (6) other factors relevant to the
may consider relevant for the inquiry. undertaking’s dominant market position..
Chapter 8 Regulations on Combinations
INDIAN CONTEXT
The Indian Competition Act 2002 mentions 3 types of combinations ie by way of

acquisition, acquiring control and merger or amalgamation. Entering into a combination
by way of merger or acquisition is like entering into an agreement. As in case of
agreements, they are classified into horizontal and vertical combinations. As in the case
of horizontal agreements, mergers have the potential of reducing competition. The above
principles apply not only to mergers but also to acquisition through takeovers, joint
ventures or interlocking directorates. Horizontal acquisitions like horizontal mergers are
clearly the type of activity which contributes most directly to concentration of economic
power and which is likely to lead to a dominant position of market power, thereby
reducing or eliminating competition. Vertical acquisition of control may have adverse
effects, such as foreclosing the rival firms from the market by creating a captive
distribution channels, blocking entry by compelling the potential entrants to have big
capital investment, price squeezing by enabling the combined enterprise to reduce costs
resulting in reduction in output prices. Mergers between enterprises operating in different
markets are called conglomerate mergers. Conglomerate mergers would generally be
beyond the purview of any law on mergers.
A merger lead to “bad” outcome only if it creates a dominant enterprise that subsequently
abuses its dominance. The provision in the Competition Act is to pre empt the potential
abuse of dominance, as subsequent un bundling can be both difficult and socially costly.
To constitute anti competitive combinations, the Act has prescribed certain requirements
including a threshold limit based on value of assets and turnover. Further the
combinations shall be examined on individual enterprise as well as a group of enterprises.
The law requires mandatory notification by the party to the Commission and the
combination is effective under law only if the Commission approves the combination.
Exemptions under the Act are only for share subscription or financing facility or any
acquisition by a public finance institution, foreign institutional investor, bank or venture
capital fund pursuant to any covenant of a loan agreement or investment agreement.
CHINESE CONTEXT
China is not having a comprehensive antimonopoly legislation. The new Anti Monopoly
Law to be effective from 1-8-2008 addresses most of the issues and is the comprehensive
law. Before AML the regulations regarding concentrations are ;
1. Regulations on the Mergers & Acquisition of Domestic Enterprises by Foreign

Investors (M&A Regs)
2. Guidelines on Anti Trust Filings for Mergers and Acquisitions of Domestic
Enterprises by Foreign Investors (Filing Guidelines)
These Regulations were not WTO compatible as they apply only to Foreign investors.
The new law is WTO compatible as the law is neutral to both national and foreign
investors. There were separate thresholds limits : One set for Onshore M&A Transaction
and another for Offshore M&A. The new Law states that the threshold limits are to be
notified by the State Council. It is expected that the State Council will publish the
Implementation Regulations before the Law becomes effective from 1-8-2008. In the
earlier drafts of the Law, notification and review were required if the aggregate
worldwide turnover of all parties to the transaction exceed RMB 12 billion (App US$1.50
billion) and one of the parties had a China turnover exceeding RMB 800 million (app
US$105 million). This threshold limit was widely criticized because many multinational
companies doing business in China can easily satisfy this limit. In addition to an
antimonopoly review, Article 31 provides that concentrations involving a foreign investor
might have national security concerns that subject the transaction to national security
review in accordance with relevant regulations. This article is perhaps the most
controversial provision in the Law. This is not the first time national security check as
part of Chinese legislation. The M&A Regulations the focus was mainly on national
economic security. In December 2006, the State Council released a list of strategic
sectors in which the State would retain control including military manufacturing, power
production and grids, petroleum, gas and petrochemicals, telecom manufacturing, coal,
civil aviation and shipping. The M&A Reg article 12 requires parties to report to
MOFCOM any onshore transaction that results in actual control by a foreign investor
and involves key industries, has factors imposing or possibly imposing material impact
on the economic security of the State or would result in transfer or actual control in a
domestic enterprise which owns any well known trade marks or Chinese historical
brands. Exemption are there for parties owing more than 50% of the total voting power
in two categories. Exemption is generally for merger of holding company and subsidiary
company. Filing of document is mandatory and approval by Enforcement Authority is
also necessary.
With this background we now compare the Laws of the most populace Nations of the
World. :

Definition of Combination Section 5 Chapter VI
(Concentrations)
Article 20
Regulation of Combinations Section 6 Article 27, 28, 31
Exemptions Section 6(4) Article 22
Notification Section 6(2) Article 21
Enabling Power to inquire Section 20 Article 23, 24,
combinations
Procedure for Investigation Section 29 Article 25
Orders of the Commission/ Section 30 & 31 Article 26, 29,30
COMBINATIONS OR CONCENTRATIONS WHICH ARE SUBJECT TO THIS

ACT :
Threshold limits are prescribed in both the Law for mandatory notification of merger,
acquisition. The Indian Competition Act has mentioned this threshold limits in the Act
itself. The limits may be reviewed on certain basis once in 2 years. In the AML of China ,
the threshold limits are not mentioned and they have to be notified by the State Council .
The Indian context brings to focus not only a single enterprise but a group of enterprises
in the regulation of combinations. Such extending is not mentioned in the Chinese Law.
Further the Indian Law relates the threshold limits only to asset base and turnover base,
there is no lining to market margin, however in the earlier regime before AMP, the
Chinese law and regulations have criteria linked to assets base, turnover and market
margin. The Chinese context in earlier regime had two different threshold limits one for
on shore M&A and another set for Offshore M&A. The Indian Law refers to 3 kinds of
combinations ie acquisition, acquiring control and merger or amalgamation. There are
two threshold limits one for single enterprise and another for the group. Again there are
two threshold limits for parties in India, and in India or outside.
Comparison of the section and article :

Combination : (Acquisition Sec 5(a) Article 20 A concentration refers to the
The acquisition of one or more enterprises by
following circumstances: (2) Controlling
one or more persons or merger or amalgamation
of enterprises shall be a combination of such other undertakings by acquiring their shares
enterprises and persons or enterprises, if— or asets or through other means ;
(a) any acquisition where— (See threshold
limits)
Combination : ( acquiring control Sec 5(b) (3) acquiring control over other undertakings
acquiring of control by a person over an by contract or other means by obtaining the
enterprise when such person has already direct ability to exercise decisive influence over
or indirect control over another enterprise other undertakings by contract or other
engaged in production, distribution or trading of means.
a similar or identical or substitutable goods or
provision of a similar or identical or
substitutable service, if— (See threshold limits)
Combinations (Mergers Sec 5©’ (1) the merger conducted by undertakings ;
any merger or amalgamation in which—
(i) the enterprise remaining after merger or the
enterprise created as a result of the
amalgamation, as the case may be, have,— (See
threshold limits)
COMPARISON OF THRESHOLD LIMITS
The Indian Competition Act 2002 prescribes the threshold limits on combinations in the
three modes for mandatory notification. These limits were amended in 2007 Amendment
Act. In the AML of China the threshold limits are not mentioned in the Act, they will be
notified by the State Council. It is not clear under the Chinese AML whether the
threshold limits will be the same for all the 3 modes of concentrations or different for
each mode. The Indian law mentions threshold limits for individual enterprise and for
group. There is no such grouping under the AML of China. The Indian Competition Act
relates or links the threshold limits to the asset base and turnover base , whereas the
Chinese regulations on M&A links the threshold limits to assets base, turnover base and
market margin base. Since the threshold limits are not notified, the comparison is not
possible at this stage;
• Threshold limits for combinations where the parties (enterprises) to combinations
are operating totally in India :
Threshold criteria (Asset No Group Group

or Turnover)
Assets Value > Rs. 1000 Crores > Rs.4000 crores
Turnover > Rs.3000 crore > Rs. 12000 Crores
** Threshold limits for combinations where among the parties (enterprises) to

combination atleast one party is operating in Indian and outside India :
Threshold criteria No Group Group

(Asset or
Turnover)
Total/ India Total India Total India
Assets Value >$500 millions Min Rs. 500 >$1500 million Min Rs. 1500
crores crores
Turnover >$2 billion Min Rs.500 >S 6 billion Min Rs.1500
crores crores
Section 20 (3) give power to the Central Government to change the threshold limits, may
be category wise. Notwithstanding anything contained in section 5, the Central
Government shall, on the expiry of a period of two years from the date of commencement
of this Act and thereafter every two years, in consultation with the Commission, by
notification, enhance or reduce, on the basis of the wholesale price index or fluctuations
in exchange rate of rupee or foreign currencies, the value of assets or the value of
turnover, for the purposes of that section.
The following words and phrases are explained or defined in the Act which have
relevance in determination of combinations
Group : Explanation (b) to Section 5
"group" means two or more enterprises which, directly or indirectly, are in a position to —
(i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or
(ii) appoint more than fifty per cent. of the members of the board of directors in the other
enterprise; or
(iii) control the management or affairs of the other enterprise;
Control : Explanation (a) to Section 5
"control" includes controlling the affairs or management by—

(i) one or more enterprises, either jointly or singly, over another enterprise or group;
(ii) one or more groups, either jointly or singly, over another group or enterprise;
Acquisition : Section 2(a)

"acquisition" means, directly or indirectly, acquiring or agreeing to acquire—
(i) shares, voting rights or assets of any enterprise; or
(ii) control over management or control over assets of any enterprise;
Turnover Section 2(y)
"turnover" includes value of sale of goods or services;
Determination of value of assets : Explanation © to Section 5
the value of assets shall be determined by taking the book value of the assets as shown, in the
audited books of account of the enterprise, in the financial year immediately preceding the
financial year in which the date of proposed merger falls, as reduced by any depreciation, and
the value of assets shall include the brand value, value of goodwill, or value of copyright,
patent, permitted use, collective mark, registered proprietor, registered trade mark, registered
user, homonymous geographical indication, geographical indications, design or layout-design
or similar other commercial rights, if any, referred to in sub-section (5) of section 3.
Chinese Context
As described above the Chinese AML has not quantified the threshold limits for
concentrations notifications. The threshold limits are yet to be notified. Under the
existing M&A Regulations, there are different threshold limits one for concentrations
covering on shore enterprises and another for off shore enterprises. Details are given
below :
Two Types of On Shore M&A Transaction : Equity and Asset :
EQUITY TRANSACTION :
Equity Transaction in which a foreign enterprise either

(a) purchases equity shares in a domestic enterprise and subsequently converts that
domestic enterprise into a foreign invested enterprise (FIE) or
(b) subscribes for a capital increase in a domestic enterprise and subsequently
converts that domestic enterprise into and FIE
ASSET TRANSACTION :
Asset transaction through which a foreign enterprise either :

(a) establishes and FIE to purchase and operate the assets of a domestic enterprise or
(b) purchases such assets for contribution to the establishment of a new FIE.
The mandatory notification threshold limits are given below :
Particulars On Shore M&A Off Shore M&A

Transaction Transaction
Ref Article Article 2 Article 53
Asset Base in China Not Applicable >RMB 3 billion
(App $ 388 million)
Turnover in China RMB 1.50 billion RMB 1.50 billion
(App$194 million) (App$194 million)
Other acquisitions More than 10 domestic Will hold directly or
enterprises in related indirectly an equity interest
industries in China in more than 15 FIE in
within 1 year related industries in China
as a result of the
transaction.
China market share 20% or more 20% or more
before M& A
transaction
China market share 25% or more 25% or more
after M& A
transaction
The drafts on Regulations of AML suggests the following threshold limits :
Only turnover base and market share base. No relation to asset base ;
Aggregate worldwide turnover RMB 12 billion (App $ 1.50 billion)

One of the parties –China Turnover RMB 800 million (App $ 105 million)
Market share after M&A transaction >25% of China
Some legal experts have commented that these are very low levels compared to the
current economic scenario of FDI and merger activities in China.. Also it is mentioned in
the press that the asset base threshold limit may be dropped retaining only turnover and
market share threshold.
REGULATION OF COMBINATIONS :

Section 6 (1) Article 28
No person or enterprise shall enter into a In the case that the undertaking’s
combination which causes or is likely to cause concentration will or may eliminate or
an appreciable adverse effect on competition restrict market competition, the Anti-
within the relevant market in India and such a monopoly Enforcement Authority shall
combination shall be void. make a decision to prohibit the
concentration and give reasons thereof.
However, the Anti-monopoly Enforcement
Authority may decide not to prohibit the
concentration if the involved undertakings
can prove either that the advantages of
implementing the concentration exceed the
disadvantages, or that the concentration is in
harmony with the public interest..
Under the Indian Competition Act, the absolute power or authority to determine whether
the combination causes or likely to cause an appreciable adverse effect on competition
rest with the Commission. The parties to the combination shall during the course of
hearing shall file all relevant documents and proof to prove that the transaction is not anti
competitive. In the Chinese context, if the undertakings concerned can prove that the
concentration will bring more positive impact than negative impact on competition “ This
is a very subjective matter proving more positive than negative. There is no measurement
scale to measure the positive or negative impact on competition. Another important thing
is that in case the operators that the concentration is in pursuant to public interests then
the Enforcing Authority may not prohibit the transaction. To prove “ public interest “ and
not even benefits of public interest. These two areas are better to be vested with the
Enforcing Authority than with the operators.
EXEMPTIONS :
Exemption is mentioned in both the Laws from filing the notice of combination or
concentration.
Indian Context :
Under the Indian Context only the holding of equity by Public Financial Institutions,
Foreign Institutional Investors, bank, venture capital funds and too pursuant to
conversion clause in the loan agreement or investment agreement.
Section 6(4)
The provisions of this section shall not apply to share subscription or financing facility or
any acquisition, by a public financial institution, foreign institutional investor, bank or
venture capital fund, pursuant to any covenant of a loan agreement or investment
agreement.
Chinese context : Under the AML of China , the exemption is for M&A in case of
holding and subsidiary company.
Article 22 Where a concentration is under any of the following circumstances, it may not be
declared to the Anti-monopoly Authority under the State Council:
(1) one undertaking who is a party to the concentration has the power to exercise more
than 50% of the voting rights of every other undertaking , whether of the equity or the
assets; or
(2) one undertaking who is not a party to the concentration has the power to exercise
more than 50% of the voting rights of every undertaking concerned, whether of the
equity or the assets.
NOTIFICATION :

Section 6(2) Article 21 Undertakings shall notify the Anto
Monopoly Authority regarding
Subject to the provisions contained in sub-
section (1), any person or enterprise, who or concentrations reaching the threshold of
which proposes to enter into a combination, notification stipulated by the State Council.
13[shall] give notice to the Commission, in the
form as may be specified, and the fee which .
may be determined, by regulations, disclosing
the details of the proposed combination, within
14[thirty days] of—
(a) of section 5 or acquiring of control referred
to in clause (b) of that section.
Note : No time limit given in the AML of China for filing. It is rather advance filing.
RELEVANT MARKET
Indian Context :
The word relevant market is well defined in the Indian Competition Act 2002. Section (r )
defines :
"relevant market" means the market which may be determined by the Commission with
reference to the relevant product market or the relevant geographic market or with
reference to both the markets;
U/s 19(5) for determining whether a market constitutes a relevant market for the purposes
of this Act, the Commission shall have due regard to the relevant geographic market and
relevant product market.
U/s 19 (6) The Commission shall, while determining the relevant geographic market have
due regard to all or any of the following factors namely :
(a) regulatory trade barriers;

(b) local specification requirements;
(c) national procurement policies;
(d) adequate distribution facilities;
(e) transport costs;
(f) language;
(g) consumer preferences;
(h) need for secure or regular supplies or rapid after-sales services.
U/s 19 (7) the Commission shall while determining the relevant product market have due
regard to all or any of the following factors namely :
(a) physical characteristics or end-use of goods;

(b) price of goods or service;
(c) consumer preferences;
(d) exclusion of in-house production;
(e) existence of specialized producers;
(f) classification of industrial products.
Chinese context
Under the Chinese context the relevant market has a simple definition in Article 12 as given
below :
"relevant market" refers to the commodity scope or territorial scope within which the
undertakings compete against each other during a certain period of time for specific
commodities or services
Chapter 9 Inquiry/ Investigation Procedures and orders
Inquiry and investigation is a very important tool in the enforcement of economic laws.
The investigation procedure gives the Enforcing Authority the strength to rely on certain
facts and circumstances which are crucial to make final opinion or decision. Generally
the investigation arm in a subject Law is within the Law itself and is not a common body
to investigate the affairs. For example the investigation arm of the Income Tax or
investigation arm of the Customs etc are within the relevant administrative Head of the
Law Enforcement Authority. In most economic and commercial laws the investigating
arm is a separate Directorate having its own regulations. It is not merely a department
enquiry committee. In the Indian Competition Act 2002, the duties of Director General
who is the designated authority for investigations is given separately. DG is a separate
directorate acting within the Competition Commission . Under the Chinese AML, there
is no separate directorate of Investigation. The investigation is supposedly to be carried
out by the Enforcing Authority. In the new law of AML of China , nothing is mentioned
on who will carryon the investigation. In the existing regime of China the Enforcing
Authority themselves do investigation and this dept is called “Office of Investigation”
Again in AML of China the word inquiry is not used only investigation. In the Indian
context, both inquiry and investigation are used.
The comparative study is given below :
Indian context :
1. The DG is appointed by the Central Government. He is not appointed by the

Commission.
2. The DG shall when so directed by the Commission, assist the Commission in
investigating into any contravention of the provisions of the Act. Ie the DG is to
investigate any contravention if and only if he is directed by the Commission. The
DG suo moto cannot initiate investigation.
3. The office of DG shall be vested with the powers as in a Civil Court under the
Code of Civil Procedure 1908.
4. The DG shall have similar powers of inspector under the companies Act 1956 u/s
240 (Production of Documents and Evidence) and 240A (Seizure of documents
by Inspector)
Under what circumstances, can investigation be directed by the Commission to the DG ?
1. On anti competitive agreements and abuse of dominant market position, on

receipt of a reference from the Central Government of State Government or a
statutory authority or on its own knowledge or information received u/s 19, the
Commission shall direct the DG to cause an investigation to be made.
2. If the report of DG recommends that there is no contravention of the provisions of
the Act, the Commission shall invite objections or suggestions from Central
Government or State Government or statutory authority or the parties concerned
on such report of DG. If after consideration of the objections or suggestions the
Commission is of the opinion that further investigation is called for, it may direct
further investigation.
There is no time limit for concluding an investigation by DG ?
No specific time limit is given.
Under what circumstances, can the Commission call for inquiry ?
1. Inquiry into combination by Commission u/s 20(1)

2. The Commission shall not initiate any inquiry under this subsection after the
expiry of 1 year from the date on which such combination has taken effect.
3. U/s 26(8) “ If the report of the DG recommends that there is contravention of any
of the provisions of the Act (in relation to agreements and dominant position), and
the Commission is of the opinion that further inquiry is called for, it shall inquire
into such contravention in accordance with the provisions of this Act.
4. U/s 42(1), the Commission may cause an inquiry to be made into compliance of
its orders or directions made in exercise of its powers under this Act.
Whether the Appellate Tribunal make an inquiry through DG ?
No. The Appellate Tribunal shall make inquiry on its own.. U/s 53 N(3), the Appellate
Tribunal after an inquiry made into the allegations pass an such order
The Chinese Context

Chapter VI of AMP deals extensively about investigation procedures. The Investigating
Authority is the same as Enforcement Authority. They have wide powers .
Under what circumstances an investigation be carried out ?
The anti-monopoly authority shall make investigations into suspicious monopolistic

conducts in accordance with law. Any entity or individual may report suspicious
monopolistic conducts to the anti-monopoly authority. The anti-monopoly authority shall
keep the informer confidential. Where an informer makes the reporting in written form
and provides relevant facts and evidences, the anti-monopoly authority shall make
necessary investigation.
Powers of officers carrying out investigations :
Article 39 When investigating suspected monopolistic conduct, the Anti-monopoly

Authority can take the following measures:

(i) Conduct on-the-spot inspection at the location that the business takes place or other
places that are relevant to the undertakings;
(ii) Question the undertaking under investigation, interested parties, and other relevant
organizations and individuals of the relevant circumstances;
(iii) Examine or copy the relevant documents, agreements, contracts, accounting books,
business mail, and electronic data submitted by the undertaking concerned, interested
parties, and other relevant organizations or individuals;
(iv) Seal up and retain relevant evidence; and

(v) Inquire after the bank accounts of the undertakings concerned.
Before any of the actions described in this Article are applied, a written report must be
submitted to the senior officials of the Anti-monopoly Enforcement Authority for
approval..
One more stipulation is that at least 2 officers to be present during investigation :
Article 40 When investigating suspected monopolistic conducts, there shall be at least two
law enforcing persons , and they shall present their certificates.
The authority may suspend the investigation or resume investigation under circumstances
given below :
Article 45 In
the process of investigating monopolistic conduct, the Anti-monopoly
Enforcement Authority may suspend the investigation if the subject undertakings promise
to eliminate the effects of the conduct through the use of concrete measures within the
period prescribed by the Anti-monopoly Enforcement Authority. The determination to
suspend investigation should state the concrete measures of the promise.
In case that the Anti-monopoly Enforcement Authority decides to suspend the
investigation, such Anti-monopoly Enforcement Authority shall supervise the
implementation of the promise by the relevant undertakings. If the undertakings
implement the promise, the Anti-monopoly Enforcement Authority may

terminate the investigation.. However, the Anti-monopoly Enforcement Authority shall
resume investigation if any of the following occurs:

(i) The undertakings fail to implement the promise;

(ii) The facts on which the decision of suspending investigation depended have
undergone significant changes; or
(iii) The decision of suspending investigation was based on incomplete or inaccurate

information submitted by the undertakings..
The procedure for investigation and orders are given below :
PROCEDURE OF INQUIRY OF ANTI COMPETITIVE AGREEMENTS AND

ORDERS
Indian Context Chinese Context

Initiation of Inquiry The anti-monopoly authority shall
Article 38
The Commission may initiate inquiry into conduct the necessary investigations for
anti competitive agreements on : those reports that are in a written form
1. Its own information and knowledge in containing relative facts and necessary
possession evidence. Any enterprise or individual may
2. On receipt of information report a suspected monopolistic conduct to
3. On reference of reference from the anti-monopoly authority.
Central or State Government
Inquiry
The Commission may direct the DG to The inquiry or investigation shall be carried
conduct inquiry on any anti competitive out by Enforcement Authority (Office of
agreements Investigation ) Procedure mentioned in
Article 39 to 44
After Inquiry ?
After receipt of the investigation report from When inquiring about and investigating
the DG, the Commission shall determine suspicious monopolistic conducts, law
whether the behaviour under inquiry is anti enforcers shall make notes thereon, which
competitive after hearing the concerned shall bear the signatures of the persons
parties and pass appropriate orders. under inquiry or investigation. (Article 40)
Interim Relief :
The Commission may, during pendency of an No such provisions
inquiry into abuse of dominant position ,
temporarily restrain any party from carrying
on the offending act until conclusion of the
inquiry or further orders subject to sec 33.
Monetary Penalty Monetary Penalty
Impose penalty not exceeding 10% of the impose thereupon a fine of 1% up to 10% of
average turnover of the last 3 preceding the sales revenue of relevant market in the
financial years, upon a dominant enterprise previous year.
Sec 27(b) In case of cartel the Commission (Article 47)
can impose on each member of the cartel, a
penalty of up to 3 times its profit for each
year of the continuance of such agreement or
up to 10% of its turnover for each year of
continuance of such agreement, whichever is
higher.
Discontinuation of agreement Discontinuation of agreement :
May direct the enterprise to discontinue and the anti-monopoly authority shall order
not to re enter anti competitive agreement. them to cease and desist such acts
The commission may also direct modification
of such agreement
Confiscation of gains : Confiscation of gains :
No such provisions The anti-monopoly authority shall
confiscate its illegal gains (Article 46)
COMPARISON NOTINGS :
1. In the Indian context, the order by the Commission is for all or any one l (ie
cessation of dominance, monetary penalty, other orders) u/s 27 whereas under the
Chinese context, the order is for both cessation as well as monetary penalty.
2. In the Indian context, the monetary penalty is not exceeding 10% of average
turnover.. No minimum prescribed but in Chinese context, there is minimum 1%
and maximum 10%
3. Turnover under Indian context is the average of 3 preceding financial years, in
Chinese context turnover is of the previous year.
PROCEDURE FOR INQUIRY OF ABUSE OF DOMINANCE AND ORDERS

Discontinuation of abuse : Discontinuation of abuse :
May direct any enterprise with dominant Article 47 Where any undertaking abuses
position to discontinue such abuse and or Sec dominant market status in violation of this
27(a) Law, it shall be ordered to cease and desist
such acts and
Monetary Penalty Monetary Penalty
Impose penalty not exceeding 10% of the impose thereupon a fine of 1% up to 10% of
average turnover of the last 3 preceding the sales revenue in the relevant market in
financial years, upon a dominant enterprise the previous year.
Sec 27(b) (Article 47)
Other orders
May direct the dominant enterprise to comply No such provisions
with such other orders and directions
including payment of cost, if any . Sec 27(e),
(f)
Confiscation of gains : Confiscation of gains :
No such provisions The anti-monopoly authority shall
confiscate its illegal gains (Article 47)
Division of Enterprise :
The Commission may direct division of an No such provisions
enterprise enjoying dominant position to
ensure that such enterprise does not abuse its
dominant position Sec 28
In addition, the Competition Appellate Article 50 The undertakings that violate the
Tribunal can be approached for award of provisions of this law and casue damage to
compensation to be paid by any dominant
enterprise for any loss or damage shown to others shall bear civil liabilities.
have been suffered by an applicant as a result
of any contravention of Sec 4 by such
enterprise, if established by the Commission .
Sec 53N(3)
Interim Relief :
The Commission may, during pendency of an No such provisions
inquiry into abuse of dominant position ,
temporarily restrain any party from carrying
on the offending act until conclusion of the
inquiry or further orders subject to sec 33.
COMPARISON NOTINGS :
4. In the Indian context, the order by the Commission is for all or any one l (ie
cessation of dominance, monetary penalty, other orders) u/s 27 whereas under the
Chinese context, the order is for both cessation as well as monetary penalty.
5. In the Indian context, the monetary penalty is not exceeding 10% of average
turnover. No minimum prescribed but in Chinese context, there is minimum 1%
and maximum 10%
6. Turnover under Indian context is the average of 3 preceding financial years, in
Chinese context turnover is of the previous year.
7. Division of assets of dominant enterprise is possible under the Indian context.
There is no similar provision in the Chinese Law so far as abuse of dominance is
concerned. However the Enforcing authority has the power for order for dispose
of stock, assets or transfer part of its business etc in case of concentrations. Article
48 “the anti-monopoly authority shall order it to cease doing so, to dispose of
shares or assets, transfer the business or take other necessary measures to restore
the market situation before the concentration within a time limit”
PROCEDURE FOR ENQUIRY/INVESTIGATION ON COMBINATION AND
ORDERS
Indian Context :
1. The Commission may upon its own knowledge or on information relating to sec
5(a), (b) and (c) inquire whether such a combination has caused or likely to cause
an appreciable adverse effect on competition in India.
2. The Commission shall on receipt of notice from party to M&A transaction shall
inquire whether a combination has caused or likely to cause an appreciable
adverse effect on competition in India.
3. The Commission shall not initiate any inquiry under this section after expiry of
one year from the date on which such combination has taken effect.
Factors for examination :
INDIAN CONTEXT (Sec 20(4) CHINESE CONTEXT (Article 27)

(a) actual and potential level of competition No comparable clause
through imports in the market;
(b) extent of barriers to entry into the market; No comparable clause
(c) level of combination in the market; No comparable clause
(d) degree of countervailing power in the (4) the influence of the concentration over
market; consumers and other undertakings.,
(e) likelihood that the combination would result No comparable clause
in the parties to the combination being able to
significantly and sustainably increase prices or
profit margins;
(f) extent of effective competition likely to No comparable clause
sustain in a market;
(g) extent to which substitutes are available or No comparable clause
arc likely to be available in the market
(h) market share, in the relevant market, of the (1)the involved undertakings’ market share
persons or enterprise in a combination, in the relevant market and their controlling
individually and as a combination; power over that market,
(i) likelihood that the combination would result No comparable clause
in the removal of a vigorous and effective
competitor or competitors in the market;
(j) nature and extent of vertical integration in (2) the degree of concentration in the
the market; relevant market,
(k) possibility of a failing business; No comparable clause
(/) nature and extent of innovation; (3) the influence of the concentration over
access to the market and over the
advancement of technology.
(m) relative advantage, by way of the (5) the influence of the concentration over
contribution to the economic development, by national economic development,
contribution to the economic development, by national economic development,
any combination having or likely to have
appreciable adverse effect on competition;
(n) whether the benefits of the combination and (6) other factors that affect market
outweigh the adverse impact of the competition thought to be worth considering
combination, if any. by the Anti monopoly Authority under the
State Council.
PROCEDURE FOR INVESTIGATION ;
Investigation of combinations is very important aspect to arrive at conclusive evidence on

adverse effect on competition. The investigation procedure dealt in the two Nation’s Law
are on different platform, but with time bound goals. Let us examine the comparative
context of procedure for investigation :
INDIAN CONTEXT (Sec 29) CHINESE CONTEXT (Article 23,24,25)

Step 1: Where the Commission is of the Step 1: The parties to concentration shall notify to the
prima facie opinion that a combination is Enforcement Authority regarding concentrations. The
likely to cause or has caused an parties also shall submit other information as detailed
appreciable adverse effect on competition in Article 23
within the relevant market in India, than Article 24
the Commission shall issue a notice to the
parties to combinations as to why In the case that the documents submitted for
investigation in respect of such notification by the undertakings are not complete, the
combination should not be conducted. undertakings concerned shall supplement the relevant
The parties have to respond within a time documents within the period provided by the Anti-
period of 30 days from date of receipt of monopoly Enforcement Authority under the State
notice. Council. A notification shall be deemed not filed if the
(If the applicant files Short Form the time documents fail to be supplemented by the undertaking
period is 60 days and if he files long form
the time period is 30 days – As per within the provided period.
Regulations)
If the applicant does not receive the show
cause notice of investigation with 30 days
or 60 days as the case may be, the
applicant can go ahead with the
combination.
Step 2; After receipt of response from the Step 2: Article 25 The Anti-monopoly Enforcement
parties the Commission may call for a Authority under the State Council shall conduct a
report from the Director General within preliminary investigation of the filed concentration,
such time as the Commission may direct make a decision whether to implement further
examination within 30 days of receiving the
documents submitted by the undertakings required
under Article 23, and notify the undertakings of that
decision in written form. Before the decision is made
by the Anti-monopoly Enforcement Authority, the
undertakings shall refrain from implementing the
concentration.
Step 3 : The Commission if it prima facie Step 3:
of the opinion that the combination has or Where the Anti-monopoly Authority under the State
is likely to have, an appreciable adverse Council decides not to conduct further review or fails
effect on competition, it shall within 7 to make a decision at expiry of the stipulated period,
working days from the date of receipt of the concentration may be implemented.
the response of the parties to the
combination or the receipt of report from
DG whichever is later, issue direction.
The direction at this stage is to publish
details of combination within 10 working
days of such direction is such manner.
The object of the notice is to bring the
combination to the knowledge of the
public and persons affected or likely to be
affected by such combination
Step 4: The Commission may invite any Step 4:
public or person to file his written Article 26The Anti-monopoly Enforcement Authority
objections, if any before the Commission under the State Council shall decide to approve or
within 15 working days from the date on prohibit the concentration within 90 working days
which the combination were published . from the date of its decision for implementing further
examination. The decision to approve or prohibit the
concentration shall be given in written form to the
undertakings concerned. If the Anti-monopoly
Enforcement Authority decides to prohibit the
concentration, the Authority shall explain the reasons
thereof. The undertakings shall refrain from
implementing the concentration within the period of
examination.
The Anti-monopoly Enforcement Authority under the
State Council may extend the time limit stipulated in
the preceding paragraph under any of the following
circumstances, but in no case shall the extension
exceed 60 days:
(i) The undertakings agree to extend the time limit;
(ii) The documents submitted by the notifying
undertakings are inaccurate and need further

verification; or
(iii) The relevant circumstances have significantly
changed after notification by the undertakings.
Undertakings are allowed to implement the
concentration, provided that the Anti-monopoly
Enforcement Authority fails to make written decision
at the expiration of the provided period of time..
Step 5: The Commission may within 15 Step 5 : Under any of the following circumstances, the
working days from the expiry of the Anti-monopoly Authority under the State Council may
period specified in step 4, may call for notify the undertakings in written form that the time
such additional or other information from limit as stipulated in the preceding paragraph may be
the parties to the combination. The extended to no more than 60 days: (1) the undertakings
additional information to be submitted by concerned agree to extend the time limit; (2) the
the parties within 15 working days after documents or materials submitted are inaccurate and
they are called for. need further verification; (3) things have significantly
changed after declaration.
Step 6: After receipt of such additional Step 6 : If the Anti-monopoly Authority under the
information, the Commission shall State Council fails to make a decision at expiry of the
proceed to deal with the case in period, the concentration may be implemented.
accordance with provisions of section 31
of the Act within 45 working days from
date of receipt of additional information.
Section 31 deals with the orders of the
Commission
ORDERS OF THE COMMISSION OR ENFORCEMENT AUITHORITIES
INDIAN CONTEXT (Sec 31) CHINESE CONTEXT (Article 26,29,30)

(1) Where the Commission is of the opinion that No such comparison
any combination does not, or is not likely to,
have an appreciable adverse effect on
competition, it shall, by order, approve that
combination including the combination in
respect of which a notice has been given under
sub-section (2) of section 6.
(2) Where the Commission is of the opinion that Article 28 Where a concentration has or may
the combination has, or is likely to have, an have effect of eliminating or restricting
appreciable adverse effect on competition, it competition, the Anti-monopoly Authority
shall direct that the combination shall not take under the State Council shall make a
effect. decision to prohibit the concentration and
give reasons therefore.
(3) Where the Commission is of the opinion that Article 29 Where the concentration is
the combination has, or is likely to have, an approved, restrictive conditions may be
appreciable adverse effect on competition but attached to implementing such a
such adverse effect can be eliminated by concentration by the Anti Monopoly
suitable modification to such combination, it Authority.
may propose appropriate modification to the
combination, to the parties to such combination.
(4) The parties, who accept the modification No such comparison
proposed by the Commission under subsection
(3), shall carry out such modification within the
(3), shall carry out such modification within the
period specified by the Commission.
(5) If the parties to the combination, who have No such comparison
accepted the modification under subsection (4),
fail to carry out the modification within the
period specified by the Commission, such
combination shall be deemed to have an
appreciable adverse effect on competition and
the Commission shall deal with such
combination in accordance with the provisions
of this Act.
(6) If the parties to the combination do not No such comparison

accept the modification proposed by the
Commission under sub-section (3), such parties
may, within thirty working days of the
modification proposed by the Commission,
submit amendment to the modification
proposed by the Commission under that sub-
section.
(7) If the Commission agrees with the No such comparison
amendment submitted by the parties under
subsection (6), it shall, by order, approve the
combination.
(8) If the Commission does not accept the No such comparison
amendment submitted under sub-section (6),
then, the parties shall be allowed a further
period of thirty working days within which such
parties shall accept the modification proposed
by the Commission under sub-section (3).
(9) If the parties fail to accept the modification No such comparison
proposed by the Commission within thirty
working days referred to in sub-section (6) or
within a further period of thirty working days
referred to in sub-section (8), the combination
shall be deemed to have an appreciable adverse
effect on competition and be dealt with in
accordance with the provisions of this Act.
(10)Where the Commission has directed under No such comparison
sub-section (2) that the combination shall not (Implied)
take effect or the combination is deemed to
have an appreciable adverse effect on
competition under sub-section (9), then, without
prejudice to any penalty which may be imposed
or any prosecution which may be initiated under
this Act, the Commission may order that—
(a) the acquisition referred to in clause (a) of
section 5; or
(b) the acquiring of control referred to in clause
(b) of section 5; or
(c) the merger or amalgamation referred to in
clause (c) of section 5,
shall not be given effect to:
Provided that the Commission may, if it
considers appropriate, frame a scheme to
implement its order under this sub-section.
Publication of Commissions Orders : No Article 30 Where the Anti-monopoly
specific power Authority under the State Council decides to
prohibit a concentration or attaches
restrictive conditions on concentration, it
shall publicize such decisions to the general
public in a timely manner.
No overriding power to the parties to Article 28 :However the Anti Monopoly
combination to prove otherwise Authority may decide not to prohibit
concentration, if the involved undertakings
can prove that the advantages of
implementing the concentration exceed the
disadvantages, or that the concentration is in
harmony with the public interest..
TIME SCALE FOR DELIVERY OF ORDER BY THE ENFORCEMENT

AUTHORITY :
Competition Law has to be administered ins such a way that effective delivery is time
bound. Competition Law is a commercial and economical law. If delivery is not within
time bound limits, the purpose of law is defeated. Before justice is delivered the cartel or
the combinations shall even out the competitive players in the relevant market. Also the
Competition Laws of Nations have an impact on the investment decisions and to have an
encouraging investment regime, time bound decisions from Law Enforcing authorities is
well appreciated.
Thus we see a major shit in most of the legislations to have time bound delivery justice.
Let us now compare the time limits in regulation of Competition Law of the Asian
economic powers, India and China on Regulation of combinations:
REGULATIONS/ INDIAN CONTEXT CHINESE CONTEXT
PROCEDURE (within)
Step 1 : Filing of 30 days of such approval of Notification in advance ; No
Notification of the proposal by the Board time period specified. May
Combinations or execution of any be the regulations on
agreement Notifications (Not yet
made) may stipulate such
time limit
Step 2: Notice to respond 30 days of such notice No such provision
for investigation
Step 3: Report from No stipulation of time : Shall conduct a preliminary
Director General Within such time as the enquiry
Commission may direct
Step 4: Calling the parties 7 days from date of No such provision
to publish details response or report of DG
whichever is later
Step 5 ; Time for the parties 10 working days No such provision
to publish additional
information
Step 6 : Response from 15 working days No such provision
public
Step 7: Calling for 15 Working days 30 days from receipt of
additional information notice
Step 8 : Submission of 15 working days Not mentioned
additional information
Step 9 : Examination of 45 working days 90 days from decision for
additional information further examination
Total days (after receipt of 30 days + 107 working days 120 days
notice from parties) + (No of days beyond 30
days time for DG to submit
report)
Step 10 Orders of the 45 working days (included
Commission : in above)
In case modification is
suggested
Step 11 Notice for 30 working days
amendment to modification
by parties
Step 12 In case the 30 working days to accept
Commission does not
accept the notice for
amendment
Maximum Period under 210 days from date of 150 days from date of
which the Commission has notice to the commission + notification.
to decide to approve or 30 working days as per Step
prohibit the combination 11 + 30 working days as per
Step 12
Extension of time : Possible if requested by the Not possible. Extension
parties of combination : only by Enforcement
Max 90 working days in all Authority
circumstances
Extension of time by No such provision May extend for maximum
Enforcement Authority 60 days under any one of
the following circumstances
(1) the undertakings agree to
extend the time limit;
(2) the documents or
materials submitted are
inaccurate and need further
verification;
(3) things have significantly
changed after declaration.
Note : Days and Working days are different. Working days are only the official working
days of GOI. In the Chinese context days are only calendar days.
ORDERS ON COMBINATIONS
The Commission shall approve the No mention of written orders by the
combination, if no appreciable adverse effect Authority approving concentration. In case
on competition is found no notice received for further examination
within 30 days of filing notification or the
Authority could not make decision within
90 days (or150 days if extension permitted)
the concentration may be implemented.
[Article 25,26]
The Commission shall disapprove of such The Anti Monopoly Authority shall decide
combination in case of appreciable adverse to prohibit the concentration
effect on competition A decision of prohibition shall be attached
with reasons therefore
The Commission may propose suitable Article 29 Where the concentration is
modifications. approved, restrictive conditions may be
attached to implementing such a
concentration by the Anti-monopoly
Authority..
Factors on positive impact of combinations However, if the undertakings concerned
shall be considered by the Commission during can prove that the concentration will bring
hearings. more positive impact than negative impact
on competition, or the concentration is
The word public interest is mentioned on the pursuant to public interests, the Anti-
powers of the Central Government to exempt monopoly Authority under the State
class of enterprises Council may decide not to prohibit the
concentration.
No such specific examinations in case of Article 31 In the case that national security is
foreign acquirer. concerned, besides the examination on
concentration in accordance with this Law,
the examination on national security
according to the relevant regulations of the
State shall be conducted as well on the
acquisition of domestic undertakings by
foreign capital or other circumstances
involving the concentration of foreign
capital..
Only monetary penalties if contravention of Article 48 In the case that the undertakings’
orders of Commission. No power to direct concentration is in violation of the relevant
dispose of assets or transfer of business provisions of this Law, the Anti-monopoly
Enforcement Authority under the State
Council shall order the undertakings
concerned to stop implementing
concentration, dispose whole or part of its
stock or assets within a specific time,
transfer part of its business, adopt other
necessary measures to restore the market
situation before the concentration, and may
also impose a fine of less than 500,000
RMB.
Chapter 10 Appellate Forum
INDIAN CONTEXT
Under any law appeal procedure is a part to review the judgment or decision taken at the
lower level of Enforcement Authority. The Appellate Tribunal forum is common in most
of the economic laws. Under the Indian Constitution the Supreme Court is the ultimate
authority and hence the final stage rests in Supreme Court. Under the Indian Competition
regime, the Central Government shall establish a Competition Appellate Tribunal by
notification.
I Under what circumstances an appeal

can be made ?
To hear and dispose of appeals against any direction issued or decision made or order
passed by the Commission under :
1. Section 26(2) : Orders passed on receipt of a reference from Central Government

or State Government or a statutory authority or information received under
section 19.
2. Section 26 (6) If after considerations of the objections and suggestions of DG, the
Commission agrees with the recommendation of DG it shall close the matter
forthwith and pass such orders.
3. Section 27 : Orders passed by Commission after inquiry into agreements or abuse
of dominant position.
4. Section 28 – Division of enterprise enjoying dominant position.
5. Section 31 Orders of the Commission on certain combinations.
6. Section 32 Acts taking place outside India but having an effect on competition in
India.
7. Section 33 – Interim orders.
8. Section 38 – Rectification of orders
9. Section 39 – Execution of orders of Commission imposing monetary penalty.
10. Section 43 – Penalty for failure to comply with directions of the Commission and
Director General.
11. Section 43A- Power to impose penalty for non furnishing of information on
combinations.
12. Section 44 –Penalty for making false statement or omission to furnish material
information.
13. Section 45 – Penalty for offences in relation to furnishing of information.
14. Section 46 – Power to impose lesser penalty.
To adjudicate on claim for compensation that may arise from the findings of the
Commission or the orders of the Appellate Tribunal in an appeal filed against any finding
of the Commission under :
1. Section 42 A – Compensation in case of contravention of orders of Commission.

2. Section 53Q(2) – Contravention of orders of Appellate Tribunal
3. Section 53N- Awarding compensation.
II Who can appeal to the

Appellate Tribunal ?
1. The Central Government.

2. Any State Government
3. Local authority
4. Enterprise or person aggrieved by any direction, decision or order of the Commission
Note: Statutory authority are not having the power to appeal unless they are party to any
direction of the Commission.
III What is the time limit for appeal ?
Every appeal should be filed within a period of 60 days from the date on which a copy
of the direction or decision or order made by the Commission is received by the
applicant.
The Appellate Tribunal may entertain an appeal after expiry of 60 days if it is satisfied
that there was sufficient cause for not filing it within that period.
IV What is the maximum time to

dispose of the appeal by the
Appellate Tribunal ?
No time limit is fixed. Endeavour shall be made by the Appellate Tribunal to dispose of
the appeal within 6 months from the date of receipt of the appeal.
APPEAL TO SUPREME COURT
Appeal on what orders ?
On any decision or order of the Appellate Tribunal.
Who can appeal ?
1. The Central Government.

2. Any State Government.
3. The Competition Commission of India.
4. Statutory Authority
5. Local Authority
6. Any enterprise or any person aggrieved by any decision of the Appellate Tribunal.
When to file ?
Within 60 days of communication of the decision or order of the Appellate Tribunal
The SC may if it is satisfied that the applicant was prevented by sufficient cause from
filing the appeal within 60 days may allow it to be filed after 60 days.
THE CHINESE CONTEXT
Under the China there is no separate Appellate Tribunal. The procedure is only for
administrative reconsideration. However in case of concentrations first they have to apply
for administrative reconsideration and if they are not satisfied with the revised decision,
then only the aggrieved party may bring an administrative suit in accordance with law. In
case of orders other than concentrations, the aggrieved party has the option either to
apply for administrative reconsideration or to bring an administrative suit in accordance
with the law. .
Who can Appeal ?
Where the undertakings concerned and the interested parties are dissatisfied
Article 53
with the decisions made by the Anti-monopoly Enforcement Authority pursuant to
Article 28 and Article 29 of this Law, they may first apply for an administrative
reconsideration; if they are still dissatisfied with the reconsideration, they may bring an
administrative suit in accordance with the law.
Where the undertakings are dissatisfied with any decisions made by the Authority other
than the decisions made in accordance with the previous paragraph, the parties may apply
for an administrative reconsideration or bring an administrative suit
Where any party concerned objects to the decision made by the anti-monopoly authority
in accordance with Articles 28 and 29 of this Law,
Article 28 In the case that the undertaking’s concentration will or may eliminate or restrict
market competition, the Anti-monopoly Enforcement Authority shall make a decision to
prohibit the concentration and give reasons thereof. However, the Anti-monopoly
Enforcement Authority may decide not to prohibit the concentration if the involved
undertakings can prove either that the advantages of implementing the concentration
exceed the disadvantages, or that the concentration is in harmony with the public interest.
Article 29 Where a concentration is approved, restrictive conditions may be attached to

implementing such a concentration by the Anti-monopoly Enforcement Authority.
Where any party concerned is dissatisfied with any decision made by the anti-monopoly
authority other than the decisions prescribed in the preceding paragraph, it may lodge an
application with the Anti Monopoly Authority for administrative reconsideration.
Chapter 11 Effects on Rights under Intellectual Property Act dealt in the

Competition Law
The various intellectual property rights are to be protected in line with WTO
commitments made the member country. India has passed or amended various law in
terms of commitment under TRIPS ie Trade Related Matters under Intellectual Property
Rights. China has also amended various laws. Generally the Competition law overrides
other laws of the country to the extent there is adverse effect of competition. Section 60
of the Indian Competition Act 2002 mentions that the provisions of the Competition Act
shall have effect notwithstanding anything inconsistent therewith contained in any other
law for the time being in force.
Significant transactions at the intersection of Antitrust and IP
1. Cross Licensing : There may be some agreements, among IPR holders not to
challenge one another’s IPR claims through either innovation or litigation.
Conduct that excludes competition or agreements that facilitate product – market
collusion.
2. Vertical Licensing : Exclusive dealing arrangements involving IPRs are analyzed
under traditional anti trust principles. Situations may arise for likely foreclosure of
segment of market by these exclusive arrangements.
3. Tying : Some agreements forcing the purchase of goods covered under IPR to tie
either other class of goods or goods not covered under IPR.
4. Resale Price Mechanism : Fixing resale price or minimum price of patented
products.
5. Patent Pools : Sometimes pooling of complementary patents do not necessarily
reduce prices to consumers. Collective price or output restraints in pooling
arrangements, such as the joint marketing of pooled intellectual property rights
with collective price setting or coordinated output restrictions may be anti
competitive.
6. Patents Settlements : In some situations, the agreements labeled as settlements of
patent disputes, can be a vehicle for market allocation or other anti competitive
conduct.
7. Refusal to license : In situations where a patent holder refuse to license others to
make or sell a patented invention, it should be examined whether there exists an
un conditional, unilateral refusal to license and the reasonable rights given under
IPR.
Intellectual property can be regarded as a single generic term that protects applications of
novel ideas and information that are of commercial value. Intellectual property so far as it
concerns Competition law in India refers the following :
1. Copyright and related Rights.

2. Patents
3. Trade Marks
4. Geographical Indications
5. Industrial Designs
6. Semi conductor Integrated circuit layout designs.
In the Chinese context, the IP Acts are not specifically mentioned it is simply referred to
as Intellectual Property Rights and this term is not defined.
INTELLECTUAL PROPERTY RIGHTS AND MARKET POWER/ DOMINANT

POSITION
In Indian Competition Act 2002, there is an exemption ie Nothing contained in this

section (3 for anti competitive agreements) the right of any person to restrain any
infringement or to impose reasonable conditions as may be necessary for protecting any
of his IPR rights. In the Chinese context IPR are exception to monopoly conduct itself ie
not only in case of anti competitive agreements but in other monopoly conducts itself,
provide there is no abuse of IPR.
Indian context
IPRs provide exclusive rights to the holders to perform a productive commercial activity.
But this does not automatically include right to exert restrictive or monopoly power in a
market. It is an established fact that IPR generates market power. The holder shall not
abuse this market power or restrict the commercial use for the benefit of the public in
large. The competition Act encourages competition while the IPRs restrict competition if
used with unreasonable conditions.
The Indian Competition Act 2002 has an express provision relating to IPRS in case of
anti competitive agreements. As per section reasonable conditions as may be necessary
for protecting IPRS during their exercise would not constitute anti competitive
agreements. In other words, by implication, unreasonable conditions in an IPR agreement
that will not fall within the bundle of rights that normally form a part of IPRs would be
covered under section 3 of the Act.. In particular, licensing arrangements likely to affect
adversely the prices, quantities, quality or varieties of goods and services will fall within
the contours of competition law as long as they are not reasonable with reference to the
bundle of rights that go with IPRs.
The express provision of giving IPRs is mentioned under sub section 3 only ie for anti
competitive agreements. This not expressively mentioned in other sections governing
abuse of dominance or combinations, which means in case of dominance (which is likely
to happen) the enterprises with IPRs shall be equally treated with others if abuse is there.
An enterprise, which enjoys dominant position by virtue of the IPR, if it engages in

conduct considered abuse in terms of section 4, shall not enjoy any immunity.
Chinese context
There are some distinctive features compared to Indian Competition Act:
1. There is no naming of various Intellectual Property Right Acts but simply

mentioned as Intellectual Property Rights.
2. In the Indian context there is express provision only under sect 3 ie for anti
competitive agreements. In the Chinese law there is no such express provision for
anti competitive agreements or market dominance or concentrations. It applies
equally for all.
3. There is mention of abuse of Intellectual Property Rights Law in the Act. If there
is any abuse of any Intellectual Property Right then the AML will apply. There is
no such word abuse of Intellectual Property Right in the Indian Competition Act
2002.
Comparison of relevant section/ article is given below :

Nothing contained in this section shall Article 55 This law is not applicable to
restrict the right of any person to restrain conducts by undertakings to protect their
any infringement of, or to impose
reasonable conditions, as may be necessary legitimate intellectual property rights in
for protecting any of his rights which have accordance with the IP law and relevant
been or may be conferred upon him under :
a) The Copyright Act, 1957 administrative regulations; however, this
b) The Patents Act 1970 Law is applicable to the conduct of
c) The Trade and Merchandise Marks undertakings to eliminate or restrict market
Act 1958 or the Trade Marks Act
1999 competition by abusing intellectual
d) The Geographical Indications of property rights stipulated in the IP law and
Goods (Registration and Protection)
Act 1999 administrative regulations.
e) The Designs Act 2000
f) The semi conductor Integrated
Circuits Layout Design Act 2000
COMPARISON
1. Under both the Laws the intellectual property right is protected to the extent there
is no adverse effect on competition.
2. Indian Law mentions that reasonable conditions may be acceptable under IP. Ie
the conditions should have to be established to be reasonable.
3. The Chinese context mentions of abusing IP right. What is reasonable and what is
abuse under different circumstances is difficult to prove.
Chapter 12 Powers of Government
Government exercises its power enormously in amending the law itself, issue directions,
appoint functionaries, make rules, supersede the Commission itself etc. It has also the
powers to exempt certain enterprises from any provisions of the Act. Similar powers are
found in the Chinese AML also. The word State Council is used to represent the
Government in the Chinese context.
The comparison dilutes the myth that the power is concentrated at the Government in
case of China and is less diluted in case of India.
Following table gives a very interesting comparison of the powers of the Government
under both the Laws.

Power to establish the 1. Notification of the Act Article 9
Commission, Appellate (1)(3) The State Council
Authority 2. Establishment of establishes the Anti
Commission 7(1) monopoly Commission.
3. Establishment of Article 9(5)
Appellate Tribunal The Anti Monopoly
53A(1) Commission shall
implement other
functions to be stipulated
by the State Council.
To decide the Head Quarters 1. HQ of the Commission The State Council shall
of the Commission and the 7(3) stipulate composition and
Appellate Tribunal 2. HQ of Appellate
Tribunal 53A(2) working rules of the
Anti-monopoly
Commission.
(Article 9) No such
separate Appellate
Tribunal
Appointment of Members of 1. Appointment of Do
the Commission and Chairperson and
Appellate Tribunal and members of the
Director General Commission Sec 8
2. Appointment of the
Chairperson and
members of the
Appellate Tribunal 53 ©
3. Appointment of
Chairperson and
Members of the Selection
Committee to select
Chairperson and
Members of the
Competition Commission
(Sec9)
4. Appointment of
Chairperson and
Members of the Selection
Committee to select
Chairperson and
Members of the
Appellate Tribunal
(Sec53E)
5. Appointment of Director
General (Sec16)
Removal of Chairperson and 1. Removal of Chairperson Not specifically
Members of the Commission or members of the mentioned
as well as Appellate Tribunal Commission subject to
certain conditions 11(2).
2. Removal of Chairperson
or members of the
Appellate Tribunal in
consultation with the
Chief Justice of India
53(K)
To relinquish office by the 1. The Chairperson or Not specifically
Chairperson or Members of Members shall unless mentioned
the Commission or Appellate permitted by Central
Tribunal Government to
relinquish his office
(Max 3 months)
Sec11(1), 53(I)
To make Rules 1. Power to make rules The State Council shall
under the Act (sec63) stipulate composition and
(Rules for both the Commission
and Appellate Tribunal) working rules of the
Anti-monopoly
Commission.
(Article 9)
To issue policy directions 1.Power to issue directions Article 4 :
on question of policy other The State shall make and
than technical and implement competition
administrative matters rules appropriate for the
(Sec55) socialist market economy
2. The decision of Central and improve
Government whether a macroeconomic
question is one of policy or measures for a united,
not shall be final (55(2) open, competitive and
well ordered market
system. .
Enforcement Agency Under the Indian Law the Under Chinese context,
Competition Commission of the Anti Monopoly
India is itself enforcing the Commission is to make
law policy matters and
enforcement is by Anti
Monopoly Enforcement
Authority. This will be
established by the State
Council
Power to Exempt Power to exempt any class of There is no power to
enterprises, any practice or exempt the Law or any of
any enterprise which the provisions.
performs a sovereign 1.However the State may
function from application of issue stipulations to
the Act or any of the exempt monopoly
provisions of the Act.(Sec54) agreements (Article 15
(7)
Power to remove difficulties In case of any difficulty Not specifically
giving effect to the mentioned
provisions of the Act, the
Central Government may by
order make such provisions.
This order cannot be made
after 2 years from
commencement of the Act
(Sec 65(1)
Power to super cede The Government can No such power
supercede the Commission
subject to certain conditions
for a maximum period of 6
months (Sec 56)
Power to reconstitute The Central Government can No such power
reconstitute the Commission
after supercede. (53(3)
MOU by the Commission Prior permission from No such restriction
with any foreign agency Central Government is
required. Sec 18
Inquiry into monopolistic Central Government can No such power
agreements and dominance make a reference to the mentioned in the Act
position of enterprise Commission (Sec 19)
Not for combination ?
Power to notify threshold The Central Government, in The State Council shall
limits for combinations consultation with the notify such threshold
Commission, can enhance or limits. There is no
reduce the threshold limits mentioning of how these
by notification, on the basis limits will be reviewed
of wholesale price index or Article 21
fluctuations in exchange rate
or rupee or foreign currency
once in 2 years. Sec 20(3)
National security The Central Government has Article 31
consideration the power to exempt by In the case that national
notification from the security is concerned,
application of the Act or any besides the examination
of the provisions off the Act on concentration in
for such period any class of accordance with this
enterprises if such exemption Law, the examination on
is necessary in the interest of national security
security of the State. (54(a) according to the relevant
regulations of the State
shall be conducted as
well on the acquisition of
domestic undertakings by
foreign capital or other
circumstances involving
the concentration of
foreign capital..
Chapter 13 Penalties
The Indian Competition Act 2002 has scaled up the monetary penalties to very high level.
The anti Monopoly Law of China enacted in 2007 and is made effective from 1-8-2008
has of course increased the penalties. The maximum penalty is up to 10% of turnover in
both the cases. Confiscation of goods or property on illegal gain is mentioned in the
Chinese Act but not in the Indian Competition Law. A reference it made in the Indian
Competition Act under sec 66 (1A) on repeal of MRTP Act, that any confiscation under
the MRTP Act will not have effect even after repeal. The word penalty is not mentioned
in the Chinese Act only fine is mentioned. The Chinese Act is passed in Chinese
language may be the translation not correct. In the Indian Law fine and penalty are
separately mentioned.
Further in the Indian Law the procedure for recovery of fine or penalty is mentioned. No
such elaborate procedure mentioned in the Chinese Act.
Regarding the criminal offence and its prosecution under the Indian Act, there is situation
to refer to judicial authority the Chief Metropolitan Magistrate to take cognizance of the
offence to determine the period of imprisonment and the monetary penalty for violation
of the Act. Under sec 42(3) and under section 53Q the situation is mentioned.. The
situations are :
Nature of offence Sec 42 (3) Sec 53Q

Nature of offence Contravention of orders of Contravention of orders of
the Commission to pay fine Appellate Tribunal without
imposed under sec 42(2) any reasonable ground
without prejudice to any
proceeding under sec 39
Quantum of monetary Fine which may extend to Penalty not exceeding Rs 1
penalty/fine Rs.25/ crores crore .
Quantum of imprisonment Term which may extend to Term which may extend to
3 years 3 years
Both punishments Yes monetary or Yes monetary or
imprisonment or both imprisonment or both
In both situations the Chief Metropolitan Magistrate Delhi shall not take cognizance of
any offence punishable under this Act save on a complaint made by the Commission or
an authorized an officer of the Commission u/s 42(3) and by an officer authorized by the
Appellate Tribunal u/s 53Q. Taking cognizance is a judicial act.
Infringement description under the Indian and Chinese law :
The infringements and violations of the law are codified or described in different ways.
Penalty and or fine depends on the nature of infringements or violation. Under both the
laws, the minimum or maximum monetary penalty is clearly mentioned. A comparative
descriptive of infringements or violations is given below :
I VIOLATION OF PROVISIONS OF ANTI COMPETITIVE

AGREEMENTS
Indian context
Section 27:
Where after inquiry, the commission finds that any agreement referred to in section 3 or
section 4 as the case may be, it may pass all or any of the following orders namely
a) direct any enterprise or person or association of persons as the case may be
involved in such agreement or abuse or dominant position, to discontinue and not to re
enter such agreement or discontinue such abuse of such dominant position as the case
may be
b) impose such penalty as it may deem fit, which shall not be more than 10% of the
average turnover for the last 3 preceding financial years, upon each of such person or
enterprises, which are parties to such agreements or abuse
d) direct that the agreements shall stand modified to the extent and in the manner as may
be specified in the order by the Commission
e) direct the enterprises concerned to abide by such other orders as the Commission may
pass and comply with the directions, including payment of costs if any
g) pass such other order or issue such directions as it may deem fit.
AMC of China
Article 46
In the case that the undertakings violate the relevant provisions of this Law regarding the
prohibition of monopoly agreements as well as implement monopolistic agreements, the
Anti-monopoly Enforcement Authority shall order the undertakings concerned to cease
and desist such acts, confiscate the illegal gains and impose fines from 1% to 10% of the
total sales volume in the relevant market from the previous year; if monopolistic
agreements have not been implemented, a fine of less than 500,000 RMB may be
imposed.
In the case that the industry associations that violated the relevant provisions of this Law
regarding the prohibition of organizing the undertakings of this industry to agree on
monopoly agreements, the Anti-monopoly Enforcement Authority shall impose the
industry associations concerned a fine of less than 500,000 RMB; and in the case of a
serious situation, the Administrative Authority of Social Entity Registration may rescind
its registration. .
COMPARISION
1. While under the Indian Law the penalty may be monetary and or non monetary
terms. The Commission has the power to pass all or any of the penalties
mentioned under section 27 against strict monetary penalty under article 46 of the
AMC of China..
2. Under the AMC of China minimum monetary penalty or fine is 1% of the sales
revenue in the previous year, whereas under the Indian law it is maximum upto
10% of turnover. Minimum may be less than 1%.
3. Under the Indian Law the monetary penalty shall be calculated on the average of
turnover of for the last 3 preceding financial years, under the Chinese Law it is
calculated on the sales revenue of the previous year.
4. Where the reached monopoly agreement has not been performed, then under the
Chinese Law maximum fine is mentioned ie 500000 RMB. Under the Indian
context there is no such special mention of not performing the monopoly
agreement. However under the Indian Law the Commission has the power to
issue any other directions in this regard as it deem fit.
5. Under the Chinese Law power to confiscate of all illegal gains by the
Enforcement Authority is given, whereas under the Indian Law no specific
confiscation power is given to the Commission.
6. There is special treatment for trade association under China , whereas under the
Indian Law there is no special treatment for trade associations.
II ABUSE OF DOMINANT MARKET POSITION
Indian context
Section 27 of the Act deals with the order of the Commission for violation of section 3 0r
section 4 of the Act. The penalties on violations of dominant market position is the same
as give in I ie against Anti Competitive agreements. In addition section 28 gives power to
the Commission of division of enterprise enjoying dominant market position :
Section 28
(1) The Commission may, notwithstanding anything contained in any other law for the time
being in force, by order in writing, direct division of an enterprise enjoying dominant position
to ensure that such enterprise does not abuse its dominant position.
(2) In particular, and without prejudice to the generality of the foregoing powers, the order
referred to in sub-section (1) may provide for all or any of the following matters, namely:—
(a) the transfer or vesting of property, rights, liabilities or obligations;

(b) the adjustment of contracts either by discharge or reduction of any liability or obligation
or otherwise;
(c) the creation, allotment, surrender or cancellation of any shares, stocks or securities;
48(d) [Omitted by Competition (Amendment) Act, 2007]
(e) the formation or winding up of an enterprise or the amendment of the memorandum of
association or articles of association or any other instruments regulating the business of any
enterprise;
(f) the extent to which, and the circumstances in which, provisions of the order affecting an
enterprise may be altered by the enterprise and the registration thereof;
(g) any other matter which may be necessary to give effect to the division of the enterprise.
(3) Notwithstanding anything contained in any other law for the time being in force or in any
contract or in any memorandum or articles of association, an officer of a company who
ceases to hold office as such in consequence of the division of an enterprise shall not be
entitled to claim any compensation for such cesser.
Chinese context
Article 47 :
In the case that the undertakings violate the relevant provisions of this law by abusing
their dominant market position, the Anti-monopoly Enforcement Authority shall order
the undertakings concerned to cease and desist such acts, confiscate the illegal gains, and
impose fines from 1% to 10% of the total sales volume in the relevant market from the
previous year.
COMPARISON
1. The Competition Commission under the Indian Context has the power for
division of the enterprise enjoying dominant position whereas such power is not
specifically given to the Enforcement Authority under the Chinese Law.
2. Comparison given in I above stands for II also. Under the Indian Law the
violations against section 3 or 4 are covered under section 27, whereas in Chinese
Law the violations are in two separate articles article 46, and article 47, both
article are similarly worded as far as fine/penalty are concerned.
III VIOLATIONS OF REGULATIONS OF COMBINATIONS
Indian context
Under the Indian context filing of form for mergers is mandatory. Any violation of 6(2) is
mentioned in section 43 A.
Section 43 A :
If any person or enterprise who fails to give notice to the Commission under sub-
section(2) of section 6, the Commission shall impose on such person or enterprise a
penalty which may extend to one per cent. of the total turnover or the assets, whichever is
higher, of such a combination.
Chinese context
Article 48
In the case that the undertakings violate the relevant provisions of this law by abusing
their dominant market position, the Anti-monopoly Enforcement Authority shall order
the undertakings concerned to cease and desist such acts, confiscate the illegal gains, and
impose fines from 1% to 10% of the total sales volume in the relevant market from the
previous year.
COMPARISON
1. The maximum monetary fine under the Chinese Law is 500000 RMB whereas
under the Indian Law the maximum monetary fine is up to 1% of the total
turnover or the asset which ever is higher on such a combination.
2. Under the Indian context there is no correlation of fine to % of assets under any
other section except this section. Again it is maximum of asset or turnover
whichever is higher on such combination.
3. Under the Indian context division of the enterprise is given under section 28 of an
enterprise enjoying dominant position. ie the merger should result to a dominant
opposition and then abuse of the same, then only the Commission has the power
for division of the enterprise, whereas under the Chinese Law the Enforcement
Authority can divide the enterprise of any violation of concentration, without any
bearing on dominance or its abuse ?
4. Extent powers are given to the Commission under section 29, 30 and 31 to deal
with combinations which obstruct competition.
Detailed table of Monetary penalties for similar infringement is given below:
Nature of infringement or Monetary penalty under Monetary penalty under

Violation the Indian Competition the Anti Monopoly Law of
Law China
Violating provisions Impose such penalty as it The Enforcement Authority
regarding prohibition of may deem fit which shall be shall order the undertakings
monopoly agreements as not more than 10% of the concerned to cease and
well as implement average of the turnover for desist such acts, confiscate
monopolistic agreements the past 3 preceding the illegal gains and impose
financial years, up on each fines from 1% to 10% of the
such person or enterprise total sales volume in the
which are parties to such relevant market from the
agreements or abuse previous year:
Provided that in case any If monopolistic agreements
agreement referred to in have not been implemented,
section 3 has been entered a fine of less than 500000
into by a cartel, the RMB may be imposed
commission may impose (Article 46)
upon each producer, seller,
distributor, trader or service
provider included in that
cartel a penalty of upto 3
times of its profit for each
year of continuance of such
agreement or 10% of its
turnover for each year of
the continuance of such
agreement, whichever is
higher.
If the undertakings involved Any producer, seller, they may be given a
in a monopoly agreement distributor, trader or service mitigated punishment or be
report their monopolistic provider included in any exempt from punishment at
conduct, to the Anti cartel, which is alleged to the discretion of the Anti
monopoly Enforcement have violated section 3 has Monopoly authority.
Authority and provide made a full and true (Article 46)
important evidence; disclosure in respect of the
alleged violations and such
disclosure is vital, may
impose upon such producer,
seller, distributor, trader or
service provider a lesser
penalty as it may deem fit.
Sec 46. See also other
conditions attached with
this.
In case the Trade May impose a fine of less
Association violates the than 500000 RMB
provisions to organize the (Article 46)
undertakings to reach
monopolistic agreements
In case the trade association The registration authority of
makes a serious violation social organization may
revoke the registration in
accordance with the law.
In case of dominance abuse Impose such penalty as it The Anti Monopoly
of market position may deem fit which shall be Enforcement Authority
not more than 10% of the shall order the undertakings
average of the turnover for concerned to cease and
the past 3 preceding desist such acts, confiscates
financial years, up on each the illegal gain and impose
such person or enterprise fines from 1% to 10% of the
which are parties to such total sales volume in the
agreements or abuse relevant market from the
Provided that in case any previous year.
agreement referred to in (Article 47)
section 3 has been entered
into by a cartel, the
commission may impose
upon each producer, seller,
distributor, trader or service
provider included in that
cartel a penalty of upto 3
times of its profit for each
year of continuance of such
agreement or 10% of its
turnover for each year of
the continuance of such
agreement, whichever is
higher.
In case of violations on Any person or enterprise The Anti Monopoly
mergers or concentrations who fails to give notice to Enforcement under the
the Commission under State Council shall order the
subsection (2) of section 6, undertakings concerned to
the commission shall correct the situation, impose
impose on such person or a fine of les than 500000
enterprise a penalty which RMB and may also order
may extend to 1% of the the undertakings concerned
total turnover or the assets, to dispose whole or part of
whichever is higher, of such its stock or assets, within
a combination. the prescribed time limit,
(Sec 43A) transfer part of its business
within the prescribed time
limit or adapt other
necessary measures to
restore the market situation
before concentration
(Article 48)
Undertakings violate this Compensation in case of Shall bear civil liability
law and cause damage to contravention of order of (Article 50)
others commission. Compensation
to third party. Any person
may make an application to
the Appellate Tribunal
(sec 42A)
On acts of refuse to submit If a person who furnishes or i) Fine of les than 20000
related materials and is required to furnish under RMB on individuals.
information, have submitted this Act any particulars, In case of serious
fraudulent materials or documents or any situation fine from
information, have hidden, information : 20000RMB to
destroyed or removed a ) makes any statement or 100000 RMB
evidence or refuse or furnishes any document ii) Fine of less than
obstruct investigation in which he knows or has 200000 RMB on
other ways reason to believe to be false enterprises. In case of
in any material particular or serious situation
b) omits to state any 200000RMB to 1
material fact knowing it to Million RMB
be material or iii) (Article 52)
c) willfully alters,
suppresses or destroys any
document which is required
to be furnished as aforesaid,
such person shall be
punishable with fine which
may extend to Rs.1 crore as
may be determined.
Failure to comply with Fine may extend to Rs.1 No such mentioning
directions of Commission lakh for each day during
and Director General such failure continues
subject to a maximum of
Rs.1 crore
Contravention to orders of Any person contravenes No such Appellate
the Appellate Tribunal without any reasonable Tribunal
ground, he shall be liable
for a penalty of not
exceeding Rs.1crore or
imprisonment for a term up
to 3 years or with both as
the Chief Metropolitan
Magistrate Delhi deem fit.
Penalty for continuous Failing to comply with the No such provisions
offence. orders or directions of the
Commission issued under
sections 27, 28, 31, 32, 33,
42A and 43 A of the Act
shall be punishable with
fine which may extend to
Rs.1.00 lakh for each day
during such non compliance
occurs subject to a
maximum of Rs.10 crore
(Sec 42(2)
Not complying with orders
or directions issued or fails
to pay the fine imposed may
be punishable with
imprisonment for a term
which may extend to 3
years or with fin which may
extend to Rs.25 crore or
with both, as the Chief
Metropolitan Magistrate
Delhi may deem fit.
MONETARY PENALTY/FINE IN US$ FOR SAKE OF COMPARISION
The various monetary penalty discussed above is given in US$ for sake of comparison.
The conversion rates have been taken as under :
Source ET dt 2/6/08 China Daily 2/6/08

Rupees conversion Rs42.77=1$
RMB conversion Rs.100 =16.35
RMB or 100$=693.72 (China daily)
Nature of infringement or Monetary penalty under Monetary penalty under

Violation the Indian Competition the Anti Monopoly Law of
Law China
Refuse to submit Maximum Rs.1 crore or Less than 20000 RMB on
information or false Max US$ 233809 individuals ie US$ 2883
information In case of serious violation
20000 to 100000 RMB in
US$ Min $2883 and Max
$14415
Less than 200000 RMB in
case of enterprises ie in
US$ 28830
In case of serious violation
200000 to 1000000 RMB ie
in US$ Min $ 28830 and
Max $ 144150
Failure to comply with Fine may extend to Rs.1 No such mentioning
directions of Commission lakh for each day during
and Director General such failure continues
subject to a maximum of
Rs.1 crore
In US$ 2338 /day and

maximum 233809
Compounding of penalty Rs1 lakh per day subject to No such provision
maximum of Rs.10 crores
In US$ 2338/day and
maximum $2338090
Not complying with orders Monetary max Rs. 25 crores No such provisions
In US$ 5845219
Chapter 14 Criminal Prosecution or imprisonment
Penalty is quasi criminal. However this is not always correct. A distinction has to be
drawn between two kinds of proceedings in order to ascertain whether the processing is
quasi criminal one or simply a method to secure compliance of a particular provision.
The Competition Act 2002 provides for penalties for default or failure of non compliance
or contravention of the provisions of the Act. Penalties leviable is these cases is a penalty
for breach of civil obligations. In only 2 occasions, imprisonment is mentioned.. Section
42(3) and section 53(Q). Section 42(3) is for contravention of the Commission’s order.
Section 53(Q) is for contravention of orders of Appellate Tribunal. In both the cases
imprisonment is not the only method or choice of the accused. Imprisonment may run in
parallel to monetary penalties. The award can not be given by the Commission or the
Appellate Tribunal. The order under these sections are to be passed by the Chief
Metropolitan Magistrate Delhi. The term of imprisonment or the determination of
monetary penalty shall be decided by the Chief Metropolitan Magistrate Delhi as he
deems fit. However the maximum ceiling of term of imprisonment or the maximum
monetary ceiling of penalty are prescribed in the relevant sections. The Chief
Metropolitan Magistrate of Delhi shall not take cognizance of any offence punishable
under these sections , save on a compliant made by an officer authorized by the
Commission or the Appellate Tribunal as the case may be.
Under the Chinese AML, criminal liability is mentioned clearly in two circumstances.
Imprisonment is not mentioned in the Law or its duration or who is the authority to
impose imprisonment. The AML mentions that if crime is committed, a criminal liability
shall be found by law. The first case is for undertakings and the second is for the staff of
the anti monopoly enforcement authority abuse their functional powers.
Comparative table is given under :

Section 42(3) Maximum imprisonment 3 Article 52:
years
For those undertakings who refuse to submit
related materials and information, have
submitted fraudulent materials or
information, have hid, destroyed or
removed evidence, or refuse or obstruct
investigation in other ways, the Anti-
monopoly Enforcement Authority shall ask
them to correct the situation. A fine of less
than 20,000 RMB may be imposed on
individuals, and a fine of less than 200,000
RMB may be imposed on enterprises; and
in the case of a serious situation, the Anti-
monopoly Enforcement Authority may
impose fines from 20,000 RMB to 100,000
RMB against individuals or fines from
200,000 RMB to 1 Million RMB against
enterprises; a criminal liability may be
imposed if a violation of criminal law
occurs.
Section 53(Q) Maximum imprisonment 3 No comparison
years
Criminal liability for staff of Commission or Article 54 :
Appellate Tribunal : No such mentioning in The Anti-monopoly Enforcement Authority
the Act. Such circumstances may be brought officials shall be given administrative
in within the purview of abuse of authority of sanctions if they abuse their power, neglect
Government Employee. their duties, receive bribes and cheat, or
disclose business secrets obtained in their
enforcement activities, and such officials
shall also receive criminal liability if their
actions constitute a crime.
COMPETITION LAW:
A COMPARATIVE STUDY OF INDIA AND CHINA –
BIBLIOGRAPHY
1. Articles on Anti Monopoly Law of China in website www.mondaq.com

2. Competition Law Database – China, India in www.worldbank.org
3. Articles on Anti Monopoly Law of China in website www.antitrustchina.com
4. Extracts of Anti Unfair Competition Law of China, Chinese Law on Price, Regulations
on Price control from www.en.chinacourt.com
5. Article on China Watch, The New Anti Monopoly Law and its Impact on Foreign
M&A Transactions by Thomas M. Soesmith, David Tang, Jinjian Huang of Thelen
Reid Brown Rayman & Steiner LLP, an International Law firm in their website
www.thelen.com
6. Us Dept of Justice : Address by R.Hewitt Pate, Acting Asst. Attorney General Anti
Trust Division on Antitrust and Intellectual Property in www.usdoj.gov
7. Article by Nate Bush, Counsel in Beijing office of O’ Melveny & Myers LLP on The
PRC Antimonopoly Law: Unanswered Questions and Challenges Ahead in
www.antitrustsource.com
8. International Bar Association, Anti Trust Committee – Working Group on the
Development of Competition Law in China – Comments on the draft Anti Monopoly
Law of China
9. English Translation of Anti Monopoly of China in www.competitionlaw.cn
10. Antitrust Law Journal published by American Bar Association Vol 7 Issue 1- 2008.
Articles by Zhenguo Wu, Dy. Director General , Dept of Laws and Treaties, China,
article by Yong Huang Professor of Law, Beijing University, article by Xioye Wong,
Professor of Law Chinese Academy of Social Sciences. All articles on anti Monopoly
Law of China.

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A COMPARATIVE STUDY OF INDIA

Presented By R. Ganesan FCA – Intern with Competition Commission of India, New

I am grateful to the Competition Commission of India for accepting my request to be

I am highly indebted to Comdt. M.M. Sharma, Additional Registrar of CCI who is my

I am extremely grateful to the Institute of Chartered Accountants of India, who has

New Delhi, CA. R.GANESAN

4. The threshold limits in case of combinations are mentioned in Competition Act

5. Agricultural producers, rural economic organizations engaged in agricultural

6. Where reasonable use of IPR is exempted in agreements in the Indian

7. In the Chinese Law in context to market dominance, collective dominance

9. In the Indian Competition Act 2002, we have Appellate Tribunal as an appeal

1. INTRODUCTION AND BROAD ANALOGY OF COMPARISON

2. FUNCTIONS OF THE COMMISSION AND THE ENFORCEMENT OF

3. EXTRA TERRITORIAL REACH

4. EXCEPTIONS, SIMILARITIES AND DISSIMILARITIES

5. UNIQUE FEATURES OF CHINESE LAW

6. ANTI COMPETITIVE AGREEMENTS

7. ABUSE OF DOMINANT MARKET POSITION

9. INQUIRY, INVESTIGATION PROCEDURE & ORDERS

10. APELLATE FORUM

11. EFFECTS ON RIGHTS ON IPR DEALT IN COMPETITION LAW

12. POWERS OF GOVERNMENT

14. CRIMINAL PROSECUTION OR IMPRISONMENT

By R. Ganesan FCA as intern with Competition Commission of India under guidance of

ARTICLE PRESENTED IN JUNE 2008

Chapter 1 Introduction and broad analogy of comparison

o Together they represent 38% of World population

(Source : Book titled”CHINDIA Rising” by Prof Jagdish N Sheth published by Tata

China is in a transition stage from controlled or centrally planned economy to market

• 2004 China’s Lenovo acquired IBM’s personal computer division.

ANTI TRUST LAW :

a) Trade mark counterfeiting.

Object of Indian Competition Act, 2002 :: (Preamble)

“To establish a Commission to prevent practices having adverse effect on competition, to

Object of Chinese Anti Monopoly Law ,2007 :: Article 1

Translation script of Chinese Anti Monopoly Law :

Relevant Matter www.antitrustchina,.com Other translations

Chapter 2 Functions of the Commission and Enforcement of the Law

INDIAN CONTEXT CHINESE CONTEXT

Chapter 3 Extra Territorial Reach

INDIAN CONTEXT (Sec 32) CHINESE CONTEXT (Article 2)

have power to inquire in accordance with

Chapter 4 Exceptions, Similarities and Dissimilarities

Under administration of any commercial or economical law exemptions and exceptions

First we study comparison of exceptions :

Indian context Chinese context

4. Monetary fine or penalties for contravention of agreements and abuse of

5. Threshold limit exists for regulation of combinations [Sec 5/ Article 21]

INDIAN CONTEXT CHINESE CONTEXT

Chapter 5 Unique Features of the Chinese Law

1. National security examination [Article 31]

2. Support for Expansion and Competition :

3. Abuse of Administrative power

4. Collective market dominance

5. Prove that consumers to share the interest

In respect of anti monopoly agreements, to claim exemption, the undertakings

Chapter 6 Anti competitive Agreements

PARTICULARS INDIAN CONTEXT CHINESE CONTEXT

II COMPARISION OF THE LAWS DEALING IN ANTI COMPETITIVE

Anti Competitive Agreements

Section 3(1) of Indian Competition Act mentions “ No enterprise or association of

Any agreement entered into between enterprises

(a) directly or indirectly determines purchase or (1) fixing or changing prices of