SYNOPSIS

COMPETITION LAW

VII SEMESTER

TOPIC- HYPOTHESIZING CRIMINAL LIABILITY FOR ANTI-COMPETITIVE

AGREEMENTS

INTRODUCTION

In the contemporary era, competition law has emerged as one of the most significant branches
of law. Its importance can be attributed to the increasing trade, simultaneous changes in the
market and the need to regulate such markets. The basic objectives of competition law are; to
eliminate anticompetitive practices in the market, to promote competition and to protect the
welfare of consumers.

However, the efficacy and enforcement of competition law, based on financial punishment and
behavioural and structural remedies, has always been a controversial problem. At present, the
Act contemplated civil liability for the anti-competitive practices being carried on by
companies. Such enforcement based on fines and other remedies is asserted to have a less
deterrent impact than a criminal penalty-based scheme. Some of the lawyers and writers have
therefore suggested that criminal sanctions should be included in the enforcement of
competition law.

This project thus aims to identify the need and effectiveness of criminal sanctions in
enforcement of competition law. It examines various practical issues involved in the criminal
enforcement of competition law such as the problem of defining competition law offences;
attribution of mens rea to corporate bodies; attribution of vicarious liability to the body
corporate in criminal law; etc. Further the author attempts to provide some pragmatic solutions
for dealing with the various concerns raised by the criminal enforcement of

competition law.

STATEMENT OF PPROBLEM

The lack of criminal liability under the Indian Competition Law for the use of anti-competitive
agreements causes a problem in enforcement and compliance.
OBJECTIVES OF STUDY

• To examine the nature of liability under the Competition Act, 2002.

• To observe the effect of criminal liability on compliance.
• To identify the challenges accrued in imposing criminal liability within the Act.

HYPOTHESIS

Imposing criminal liability on companies would result in better enforcement of the Act.

RESEARCH QUESTIONS

• Whether each and every anti-competitive practice can be considered as an

offence? Or only some practices can be considered as offence? And what criteria should
be followed, while considering anti-competitive practice as an offence.
• Whether introduction of criminal liability will aid in the extra-territorial application of
the Act?
• Do Fines on Corporations ensure the Obligation of Members or its Agents?

TENTATIVE CHAPTERS

• Introduction
• Criminal liability under different jurisdictions- the author will discuss different
jurisdictions , ex- the EU and the United States, and the criminal liability in their
domestic anti-trust laws. The chapter will also include examples of the subsequent
criminalization under different commercial statutes in India and how these aided in
effective compliance.
• Indian Competition Law And Its Enforcement- this chapter will mainly focus on the
present state of liability under the Indian Competition law and what it does to aid
enforcement of the statute.
• Need For Criminal Sanctions in India – this chapter will discuss the vaccum in
enforcement created by the civil liabilities within the Act and how including a criminal
liability will be able to solve it.
• Challenges to the regime – In this chapter the author will discuss the various
challenges that can come across while applying a criminal liability for anti-competitive
practices.
• Conclusion
LITERATURE REVIEW

Ariel Ezrachi and Jioi Kindl, “Criminalization Of Cartel Activity – A Desirable goal for
India's Competition Regime?” Vol. 23(l) National Law School of India Review (2011)

This article explores the criminalization of cartel regimes in the specific context

of the Indian economy. Starting with the assumption that cartelisation is illegal

and must be punished in some way, it explores the limitations of me efinancial

penalties, as has been acutely felt in the European Union. It also discusses the
criminalization of cartel activities in the United States before finally discussing the Indian
scenario and providing suitable solutions for the same.

Dr. Aneesh V. Pillai, “The Call For Criminal Sanctions For Enforcement Of Competition
Law And Its Practical Concerns”, Competition Law Cirque, Vol. 1 National Law
University, Jodhpur (2014)

It discusses the various justifications for the use of criminal sanctions for competition law
enforcement such as Utilitarian Justification of Deterrence; Retributivist Non-
Consequentialist Justification; Stigma Effect; To ensure the Obligation of Members or
Agents of the Company; To Legitimize the Extra Territorial Application of Competition
Law; and To Ensure Cooperation among Countries. At the same time this paper also
identifies various practical issues involved in the criminal enforcement of competition law
such as the problem of defining competition law offences; attribution of mens rea to
corporate bodies; attribution of vicarious liability to the body corporate in criminal law;
etc. Further the paper attempts to provide some pragmatic solutions for dealing with the
various concerns raised by the criminal enforcement of competition law.