India: Trade Issues and Antitrust

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The first decade of the 21st century saw India reap rich dividends from the dismantling of trade restrictions and high-tariff barriers. Supported by a positive and strong industrial policy, India sustained a GDP growth rate of 7.7 per cent compounded annual growth rate (CAGR)1 for 2000–2010. Prior to this, in 1995, India also became a founding member of the World Trade Organization (WTO).

Having been sheltered for decades and mired in old technologies, this opening up of markets left domestic industries vulnerable to increased foreign competition. As anticipated, India became an active user of the WTO trade remedial measures: both anti-dumping and safeguards. Since India’s participation in the WTO, it has emerged as one of the most prolific users of anti-dumping measures in the world.

The decade also saw India’s international trade grow at a rate of 20.6 per cent CAGR.2 A number of important free-trade agreements (FTAs) with ASEAN, Japan, Singapore and Korea are in effect as a result of the government’s mission statement in their ‘Look East’ policy. Aided by the dual instruments of trade liberalisation in the domestic markets and trade protectionism under the WTO provisions, the Indian industry grew rapidly in the domestic market and became powerful under the ‘Make in India’ initiative announced by the present government.

Given the evolving economic situation, a need was felt for a more functional and robust antitrust and competition law.3 The then-existing Monopolies and Restrictive Trade Practices Act 1969 (the MRTP Act) had its roots firmly planted in India’s age of socialism. The MRTP Act focused primarily on curbing monopolies, irrespective of the consequences for the economy. The law was clearly inadequate to deal with the challenges that were expected to flow from the newly liberalised and globalised Indian economy.

Indeed, in 2002 the Supreme Court of India considered a case where an international soda ash cartel was allegedly affecting the Indian market.4 An anti-dumping case was filed, as well as a case for cartelisation under the MRTP Act. The Court considered whether the newer anti-dumping law ousted the MRTP Act, and opined that ‘the two Acts substantially operate in different fields and the following table [reproduced here] brings out some of the distinctions between the MRTP Act and the Anti-dumping provisions.’

Competition law actionsAnti-dumping actions
Competition law is concerned with the regulation of competition in a particular market within the territory of a country. Thus, it incorporates a whole host of anticompetitive practices, including: monopolistic trade practices, as defined in section 2(i) of the MRTP Act; restrictive trade practices, as defined in section 2(o); and unfair trade practices, as defined in section 36A.An anti-dumping law is concerned with addressing just one type of unfair, international trade practice that causes injury to the domestic industry (ie, ‘dumping’ of goods by an exporting country).
A complaint under the MRTP Act can be filed by a trade association, any consumer or a registered consumers’ association, or a reference can be made by the central government or state government, or even by the director-general upon its own knowledge or information. [Section 10(1)(A) of the MRTP Act.]An anti-dumping petition can be filed by the domestic Industry as defined under the Anti-Dumping Rules, or suo motu by the designated authority. [See Rules 2(b), 5(1) and 5(4) of the Anti-Dumping Rules.]
Competition law procedures allow and require consideration of interest groups such as manufacturers, importers, exporters, consumers and the general public. Commercial actors can have their interests assessed through the determination of the market, causation or injury. Interests of consumers are taken into account when assessing the impact of a business practice on competition.No interest group other than domestic industry has full legal standing in anti-dumping cases. The predominant interest group is domestic producers. Industrial users and consumers do not have legal standing to maintain a complaint.
In predatory pricing inquiries, the complainant has to establish that the predator acted with intent to eliminate competition and competitors. Actual injury is not required.In anti-dumping complaints, intent is irrelevant but actual injury has to be shown. Further, a causal link has to be established between the dumping and the injury suffered.
In most countries, competition cases are dealt with by a court of law, where parties are entitled to full discovery rights and due process.Anti-dumping inquiries are always conducted by government agencies through administrative procedures and law.

The court went on to state:

A perusal of the above chart indicates that the two statutes and regimes operate in different and distinct spheres and there is no conflict between the two regimes/statutes. Hence, the question of implied repeal of the provisions of Section 33(1)(j) of the MRTP Act, 1969 on account of the provisions of Section 9A of the Customs Tariff Act, 1975 does not arise [...] In our opinion, the MRTP Commission has no extra territorial jurisdiction. The action of an exporter to India when performed outside India would not be amenable to jurisdiction of the MRTP Commission. The MRTP Commission cannot pass an order determining the export price of an exporter to India or prohibiting him to export to India at a low or predatory price.The Court went on to state:

Prior to this case, a high-level committee was set up in 1999 to advise the government on a suitable, modern legislative framework for antitrust law in India. This committee recommended the replacement of the MRTP Act with a new legislation covering anti­competitive agreements, abuse of dominant position, merger control and competition advocacy by a new authority. The recommend­ations of the high-level committee were accepted by the government, and this led to the enactment of the Competition Act 2002 (the Competition Act) and the establishment of its enforcement agency, the Competition Commission of India (CCI).

Trade laws in India

Trade remedial measures are adopted by India to protect its domestic industries from unfair trade practices (dumping or subsidisation) or in case of emergency situations (emergency safeguard measures).

The WTO, through its agreements, allows for three types of trade remedial measures to be implemented by a member country to protect its domestic industries, which are as follows.

Anti-dumping duties under the Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade (GATT) 1994 (the Anti-dumping Agreement)

In India, the Anti-dumping Agreement is given effect through section 9A of the Customs Tariff Act 1975 (and the Anti-dumping Rules thereunder). The Directorate General for Anti-Dumping and Allied Duties (DGAD) under the Ministry of Commerce is the appointed designated authority that conducts the investigations and recommends duties. These recommendations are crystallised only once they are levied by the Ministry of Finance through a customs notification to that effect.

Anti-Subsidy and Countervailing Measures under the Agreement on Subsidies and Countervailing Measures (ASCM)

Section 9 of the Customs Tariff Act 1975 (and Countervailing Duty Rules made thereunder) is the chief Indian legislation specific to Anti-Subsidy and Countervailing Measures.

Safeguards measures under the Agreement on Safeguards (the Safeguards Agreement)

Apart from the Safeguards Agreement, section 8B (General Safeguards) and section 8C (China Specific Safeguards) of the Customs Tariff Act 1975 (and relevant Safeguards Rules framed thereunder) is the primary Indian legislation for safeguards in general. Safeguard measures are generally not country-specific and are levied against all imports of a particular product across the board.

India’s Foreign Trade Policy

India’s Foreign Trade Policy 2015–2020 (FTP 2015–2020) a first by the Modi-led government, was stated to be designed with a view to double India’s share in world trade from the present level of 3 per cent by the year 2020. By taking measures for import substitution at one side, the latest FTP 2015–2020 targets an increase in exports at the present scenario of increasing current account deficit.

The new policy gives a boost to the ‘Make in India’ vision of the government, by reducing the export obligation for domestic procurement under the EPCG scheme, and prescribing a reduction in the specific export obligation for the domestic capital goods manufacturing industry to 75 per cent from the present 90 per cent.

A reformative step by the Department of Foreign Trade is the introduction of a novel and comprehensive scheme for promoting the export of merchandise from India: the Merchant Export from India Scheme (MEIS). The MEIS replaces the earlier five schemes, viz the Focus Product Scheme, the Market Linked Focus Product Scheme, the Focus Market Scheme, the Agriculture Infrastructure Incentive Scrip and the VKGUY, with different kinds of duty scrips issued with varying conditions attached to their use. The unconditional utilisation of the scrips issued under the scheme will ensure a hassle-free export of merchandise from India.

A similar incentive has been granted to service exporters. The Service Exports from India Scheme (SEIS) will extend to ‘service providers located in India’ and will see a relaxation of the conditions on use and transfer of the scrips as opposed to the rigid conditions under the erstwhile Served from India Scheme (SFIS). The eligibility for utilisation against service tax, debits to CENVAT credit or drawback and full transferability of the scrips is an endorsement of the underlying vision of the FTP to promote the export service industry.

The need to strengthen special economic zones (SEZs) by strengthening tax benefits has also been recognised to be of crucial importance. In line with this idea, the benefits under the MEIS and SEIS have been extended to all units located in the SEZ.

The unveiling of trade facilitation measures, simplified procedures, reduced interface between the authorities and industry, with a view to ease business and inculcate transparency, is seen as a landmark step by the Ministry of Commerce and Industry towards amplifying the benefits under the FTP. The new policy encourages exploration of new markets and product diversification for exports, and is designed to complement the long-term vision of the government of prioritising the importance of trade for growth of economy.

India’s experience in the WTO

India has been a member of the WTO since 1 January 1995 and has consistently played a leadership role in advocating the incorporation and adoption of pro-developmental policies in favour of less developed economies with the objective of making the WTO a platform to promote a balanced developmental environment, ensuring that the growth of indigenous industries in less developed economies is not sacrificed in the name of globalisation. To this effect, India has been a pivotal member of the G20, a bloc of developing nations established on 20 August 2003, and has been the forerunner in various policy initiatives having a major impact on the developing countries. WTO members representing major exporters of information technology products agreed in July 2015 to eliminate tariffs on more than 200 such products under the Information Technology Agreement (ITA). In the concluded Bali Ministerial, India held firm on the issue of agricultural subsidies to enable developing and least developed members of the WTO to extend domestic food subsidies. India’s position initially attracted much criticism, however, eventually it was appreciated by several members who faced similar issues. Further, the Trade Facilitation Agreement deal reached by the WTO members is also expected to be ratified by India soon, which will pave the way for simplification of increased trade. The WTO will also be hosting its 10th Ministerial Conference, wherein issues of agriculture including special safeguard mechanisms, public stockholding, export competition and subsidies, transparency issues concerning services, rules negotiation, among other issues, will be deliberated.

Antitrust law in India: the Competition Act

Key enforcement and regulatory provisions

The focus and structure of the Competition Act is broadly in line with all modern antitrust legislations across the world. The CCI has three core enforcement and regulatory functions:

  • prohibition of anticompetitive agreements;5
  • prohibition of the abuse of a dominant position;6 and
  • regulation of combinations.7

An additional yet equally crucial mandate discharged by the CCI is that of competition advocacy.8

The CCI’s enforcement and regulatory mandate is aimed at:

  • preventing practices from having an adverse effect on competition;
  • promoting and sustaining competition in the markets;
  • protecting the interests of consumers; and
  • ensuring freedom of trade carried on by other participants in the markets in India.

As such, the provisions of the Competition Act are designed around the effects doctrine, which is, yet again, consistent with inter­national legislations, and empowers the CCI to examine the conduct of market participants, as well as proposed structural changes in an industry, using the appreciable adverse effect on competition (AAEC) test that is guided by the provisions of sections 19(3) and 20(4). The AAEC test is the substantive legal standard that, when adopted by the CCI, allows it to undertake a detailed ex-post assessment of conduct-related issues, as well as an ex-ante analysis of ‘structural changes’ in a given relevant market.

Other key provisions

The Competition Act vests the CCI with the authority to undertake an inquiry into alleged contraventions of the conduct-related provisions on the basis of a reference made to it by the central government, a state government or a statutory authority; on the basis of information filed before it; or on its own motion.

In case the CCI arrives at a prima facie view that the conduct in question is likely to be in contravention of the provisions of the Competition Act, the CCI will issue directions to the Office of the Director General (the DG Office), its investigating arm, to carry out a detailed investigation and submit a report thereon. After the investigation report has been submitted by the DG Office, the CCI will carry out a detailed inquiry into the matter, and if the contravention is established, the CCI is empowered under the Competition Act to, inter alia, pass certain orders, impose significant penalties and order the division of a dominant enterprise.9

Under the combination provisions, any transaction that meets the statutorily prescribed thresholds10 has to be mandatorily pre-notified to the CCI for its approval prior to such transaction being given effect to.11 The CCI, after conducting an ex-ante assessment of the proposed combination, can approve the combination, block the combination, or direct parties to make suitable modifications to such transactions.12

Appeals against the orders passed by the CCI can be filed before the Competition Appellate Tribunal (COMPAT)13 with the final appeal being brought before the Supreme Court of India.14

International dimension of trade and antitrust laws in India

Trade laws are, by necessity, international in nature. The extra-territorial nature of any trade remedial inquiry emanates from the WTO/GATT. In fact, trade remedial actions can only be initiated against imports from other countries. In a similar vein, the effects doctrine encapsulated within the Competition Act allows the CCI to target conduct or structural changes that have or are likely to have an AAEC in the markets in India, including conduct or combinations taking place outside the territorial limits of India that have an AAEC in the relevant market in India.15 This ‘long arm’ provision of the Competition Act will guide the exercise of jurisdiction by the CCI over international conduct and transactions, where it can be demonstrated that the relevant market in India has been affected.

As a corollary, the Competition Act also specifically provides that the prohibition on anticompetitive agreements under section 3 of the Competition Act shall not restrict the right of any person to export goods from India, to the extent that the agreement relates exclusively to the production, supply, distribution or control of goods or provisions of services for such export.16

From a jurisdictional point of view, a subtle yet significant difference between Indian trade and antitrust laws exists. Under trade laws, while the nature of inquiry for a trade remedy investigation is transnational, the jurisdiction of a trade remedial body is predominantly local (ie, concerned only with the imports entering the country). In other words, while the investigation is international, the levy is only on those goods that are imported into India. Under the Competition Act, where the CCI exercises jurisdiction over international conduct or transactions that have an effect in India, the investigation will be local (ie, to determine the effect of such conduct or combination on the relevant market in India), the remedy (including penalties) does potentially target the international enterprise under investigation.

The real issue in cases of extraterritorial jurisdiction is the power of implementation and enforcement of sanctions. Unlike trade laws that have, to some extent, a supraterritorial body like the WTO, cross-border implementation or enforcement of sanctions in antitrust matters is generally guided by the principles of comity17 in the form of bilateral memoranda of understanding (MOUs) or as specific clauses in free-trade agreements. The Competition Act itself recognises this, and in section 18 it empowers the CCI to enter into MOUs with other antitrust agencies. To date, India has entered into MOUs with the following antitrust authorities:

Antitrust AuthorityScope of MOUDate of MOU
Commissioner of Competition Bureau, CanadaCooperation in the application of competition laws and strengthening the ability to address competition enforcement matters that cross borders1 December 2014
  • The Administrative Council for Economic Defense, Brazil
  • The Federal Antimonopoly Service (FAS), Russia
  • The State Administration for Industry and Commerce, China
  • The Competition Commission of South Africa
Delhi Accord in third BRICS International Competition Conference at New Delhi; exchange of views on technical cooperation; promotion of competition advocacy22 November 2013
The Directorate-General for Competition of the European CommissionExchange of non-confidential information; bilateral enforcement as per applicable antitrust law21 November 2013
The US Federal Trade Commission and the US Department of Justice, Antitrust DivisionCooperation on antitrust investigations; sharing information on investigations and consultation on enforcement and policy issues27 September 2012
Federal Antimonopoly Service, RussiaEnhanced cooperation16 December 2011

Interface between trade and antitrust law in India

The analysis of the objectives of the two sets of laws, as expressly stated in the legislation of the subject countries, reveals that prevention of unfair business practices is the common interface between the two. While antitrust laws are primarily aimed at protecting and promoting competition in markets, anti-dumping laws are aimed at protecting the domestic industry from present or potential injury that may arise due to dumping or increased imports, which in essence amounts to protection of competitors. This difference in the objectives of the two laws did not exist when the anti-dumping laws were enacted initially, and in fact the earliest anti-dumping laws (such as the Anti-dumping Law of 1916 in the US) were meant to address antitrust concerns arising out of the practice of ‘trans­national price predation’. Until anti-dumping laws were enacted and meant to address such concerns, they were considered an extension of antitrust law and the two laws were grounded in common objectives.

However, with the advent of the WTO and the mutual agreement of all signatories to reduce tariff margins, there was a growing concern that the domestic industry of a recently opened economy would be vulnerable to various unfair trade practices such as dumping. The objectives surrounding the use of anti-dumping laws have therefore evolved and modern trade remedies now seek to prevent unfair trade practices that a country may engage in, given that it is now easier to exploit the steady reduction of tariff rates pursuant to the GATT. In some jurisdictions, however, the anti-dumping laws still continue to be aligned with their antitrust law. For instance, in the European Union, the anti-dumping law, though meant to remedy injury to the community industries, takes into account wider public interest considerations through the ‘community interest’ requirement, and analysis of the case law indicates that it addresses antitrust concerns as well. In India, there are several cases where monopoly producers are granted protection under the anti-dumping laws.

There is an understanding that trade laws are generally protectionist in nature, and operate in a fashion to favour the domestic industry over the exporters and thereby distort competition.

The CCI has been created with a mandate to ‘eliminate practices having adverse effect on competition [...] in India’.18 Moreover, according to section 60 of the Competition Act, the provisions of said Act would have an overriding effect on any other law in India. This clearly shows that the CCI has the sole mandate to decide on antitrust issues. As discussed above, the issue of inherent conflict between the antitrust authority and the designated authority for anti-dumping (DGAD) was analysed by the Supreme Court in Haridas Exports v All India Float Glass Manufacturers Association & Oths.19 The Supreme Court observed:

The jurisdiction of the MRTP Commission, in our opinion, is not ousted by the Antidumping provisions in the Customs Act. The two Acts operate in different fields and have different purposes [...] The grievance of the respondents is that import is being made at predatory prices. The challenge is to the actual import. But allowing such a challenge will amount to giving the MRTP Commission jurisdiction to adjudicate upon the legal validity of the provisions relating to import, which jurisdiction the Commission does not have. It is not a Court with power of judicial review over legislative action. Therefore, it would have no jurisdiction to decide whether the action of the Government in permitting import of float glass even at predatory prices is valid or not. The Commission cannot prohibit import, its jurisdiction commences after import is completed and any restrictive trade practice takes place.

Though the above judgment in Haridas20 was with respect to the erstwhile MRTP Act, this has now changed in the Competition Act. According to section 62 of the Competition Act, the provisions of the Competition Act would be in addition to and not in derogation of the provisions of any other law in force at the time. This could arguably set the two statutes on a collision course.

Purely from an academic perspective, it is interesting to note that, prior to certain amendments to the Competition Act that were carried out in 2007, the Competition Act had a provision under section 33(2) whereby the CCI had power to grant temporary injunction to restrain imports into the country when it suspects that such import could result in the contravention of the Competition Act. This indicates the legislative intent underlying the repeal and removal of said provision is clearly in favour of the operation of trade and antitrust laws separately, as prescribed by Haridas.21

The CCI has also, to date, taken a stand consistent with the Supreme Court’s ruling laid down in Haridas.22 For instance, in Merino Panel Products Limited v Gujarat State Fertilisers and Chemicals Limiters & Ors,23 the CCI observed:

Any party aggrieved by the imposition of anti-dumping duty has a remedy available under law and can approach the Appellate Authority, namely, Custom, Excise & Service Tax Appellate Tribunal (CESTAT) against the order imposing the anti-dumping duty.

Clarifying this stand still further, the CCI in Shailesh Kumar vs M/s Tata Chemicals Limited & Ors24 observed:

The proceedings before DGAD and DG Safeguards are quasi-judicial in nature and the correctness or otherwise of the rulings of such authorities cannot be examined in collateral proceedings before the Commission unless it is further shown that once insulated from the cross-border competition, the domestic players colluded to fix the prices or to limit the output with a view to raise the prices to the detriment of the consumers and the competition.

In line with the prevalent notion of harmonious coexistence, the Competition Act in section 21 further provides for additional provisions whereby any antitrust-related matter could be brought before the CCI as reference from any statutory authority like DGAD. Further, as per section 21A, if during any proceeding before the CCI an issue is raised by any party, the implementation of which is entrusted to a statutory authority, then the CCI can refer the matter to such statutory authority. Additionally, the application of section 21 and 21A could be taken up by the CCI, or any other statutory authority, suo moto.

It should be noted, however, that currently such cross-referencing is not compulsory, and neither the CCI nor the trade remedial authority is bound by the findings of each other. This has been dealt with by the Madras High Court in Vikash Trading Company v Designated Authority,25 which observed:

[T]he contentions raised on behalf of the petitioners that the Designated Authority ought to have referred the matter to the Competition Commission, under Section 21 of the Competition Act, 2002, cannot be accepted. It is noted that Section 62 of the Competition Act, 2002, makes it clear that the provisions of the said Act shall be in addition to and not in derogation of any other provision or any other law for the time being in force. As such, it cannot be said that it would be mandatory on the part of the Designated Authority to refer the matter to the Competition Commission, under Section 21 of the said Act, especially, in view of the fact that specific time limits have been prescribed for the Designated Authority to perform its functions, as per the provisions of Rule 16 of Anti-Dumping Rules.

In a cartel inquiry before the CCI involving automobile tyres,26 one of the allegations inquired into by the director-general was the collusive steps taken to file an anti-dumping petition during the period in which the alleged cartel was operating. In order to file an anti-dumping case, the applications need to be filed on behalf of ‘domestic industry’, which requires substantial sales, marketing and financial data. This was used as evidence to show an operating cartel by the complainants. The CCI took the view that:

The lobbying for welfare of tyre industry is the prime objective of ATMA and the same cannot be viewed as anticompetitive. The discussion and joint application for levy of anti-dumping duty also seem necessitated, given the procedure specified. Moreover since the costing data was confidential to each company the possibility of sharing such sensitive information is most unlikely.

The jurisprudence, as it stands today on the interface between trade and antitrust laws in India, is that both the laws operate in their individual capacities and the scope of mutual support is embedded in the Competition Act through the operations of section 21 and 21A. However, a deeper analysis into some of the fundamental concepts that are (seemingly) common to both trade and antitrust law would reveal that the standards and operations of these concepts in India, as discussed below, are actually quite different.

Treatment of undertakings under trade and antitrust laws

Under article 8 of the WTO Anti-dumping Agreement,27 companies being investigated for dumping into another country can provide a price undertaking that involves an agreement not to sell below a particular price. Typically, in the Indian context this would involve an agreement not to export below the non-injurious price of the domestic industry in India. As suggested, this non-injurious price is based on the data provided by the domestic industry itself. The question that then begs consideration is whether this violates section 3 of the Competition Act that absolutely prohibits horizontal cartels.

Predatory pricing versus dumping

The concept of predatory pricing, as understood in antitrust parlance, is often equated with dumping. Clause (b) to the explanation under section 4 of the Competition Act, read with the Competition Commission of India (Determination of Cost of Production) Regulations 2009, states that generally, any price charged that is below the average variable cost incurred by a dominant enterprise with the object of reducing competition or eliminating competitors would amount to predatory pricing. On the other hand, section 9(A) of the Customs Tariff Act 1975 defines ‘margin of dumping’, in relation to an article, as the difference between its export price and its normal value (normal value being the price at which the product under consideration is sold in the domestic market). Inherent in the normal value analysis is the fact that a value can only be normal if it is above the cost of production (with an exception for start-up companies).

Examination of market and industry

Under trade remedial law, a sanction can be imposed against imports only when they cause or are likely to cause injury to the domestic industry. Similarly, under antitrust law, sanctions are imposed on alleged anticompetitive practices when they cause or are likely to cause an AAEC in the relevant market in India. Thus it can be said that under both systems of law, sanctions are attached to the alleged unfair practice or the anticompetitive practice (as the case may be) depending on their impact on domestic industry, or the competition in the relevant market, respectively.

However, these very terms also bring forth the stark difference in the examinations for trade and antitrust respectively. In trade law, the impact on the domestic industry obviously relates only to the impact on the domestic producers. On the other hand, the impact on the ‘relevant market’ in antitrust law includes both producers as well as consumers of the subject product. This difference goes to the root of the objectives of both laws, where one is trying to preserve the competitiveness of a local market while the other is trying to ensure that an unfair trade practice does not harm the domestic industry of the country. Hence, the object of protection also becomes the subject of examination for injury.


There is no uniform view on the relationship between trade remedies and antitrust law. While some authors argue that trade remedial law is an extension of antitrust law, to the extent that it addresses the issue of international predation, others argue that the body of trade law, as it exists and as it is applied, is inherently protectionist in nature and thereby antithetical to the principles of antitrust law. In such instances, the necessity for an anti-dumping or anti-subsidy duty may be justified because of other countries being able to leverage entry restrictions in their own home markets into an unfair competitive advantage in export markets, especially in light of the falling tariff obstacles pursuant to the WTO. In such cases, in the absence of common rules on antitrust law disciplines, anti-dumping and anti-subsidy rules are required to level the playing field. Indeed, some members sought to include antitrust issues in the WTO agenda, but it was virtually a non-starter.28

It is also necessary to take into consideration the subtle but distinct variations in the objective of a level playing field in the context of trade remedies and antitrust law. A level playing field, from an antitrust law perspective, relates to the relevant local market and fair competition therein. On the other hand, a level playing field, from a WTO and trade remedial perspective, refers to a global reduction in tariffs to promote free and fair trade to the extent possible. Maintaining this balance of fair trade to the objective of free trade requires the exercise of measures that, taken without the context of the larger goal of free trade, may seem incompatible with the objectives of antitrust law.

Furthermore, the principles of trade remedial laws may differ significantly from the implementation of such laws. While in principle, trade remedies may be designed to preserve fair trade globally, they are often found vulnerable to exploitation by well-positioned domestic producers who seek to eliminate competition by seeking refuge under anti-dumping and safeguard measures.


  1. CAGR calculated based on data from Economic Survey of India, available at
  2. CAGR calculated based on data from Economic Survey of India, available at
  3. OECD (2009), Investment Policy Reviews: India.
  4. Haridas v Float Glass Manufacturers Association [(2002) 111 CompCas 617].
  5. Section 3 of the Competition Act.
  6. Section 4 of the Competition Act.
  7. Sections 5 and 6 of the Competition Act.
  8. Section 49 of the Competition Act allows the central government or state government to make a reference to the CCI for an opinion, when formulating a policy on competition. Additionally, the CCI under section 49(3) is mandated to take suitable measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues.
  9. Sections 27 and 28 of the Competition Act.
  10. Section 5 read with the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulation 2011 (Combination Regulations) and Notification dated 4 March 2011, issued by the Ministry of Corporate Affairs, Govt. of India vide SO 482(E) issued (de minimis Exemption Notification) in exercise of the powers under section 54 of the Act.
  11. Section 6(2) of the Competition Act.
  12. Section 31 of the Competition Act.
  13. Section 53B of the Competition Act.
  14. Section 53T of the Competition Act.
  15. Section 32 of the Competition Act.
  16. Section 3(5)(ii) of the Competition Act.
  17. The principles of comity suggest that a country should give full and sympathetic consideration to another country’s request that it open or expand a law enforcement proceeding in competition cases in order to remedy conduct in its territory that is substantially and adversely affecting another country’s interests. In addition, the requested country is urged to take whatever remedial action it deems appropriate on a voluntary basis and in consideration of its own legitimate interests. [Report of the OECD Committee on Competition Law and Policy – Making International Markets more efficient through ‘Positive Comity’ in Competition Law Enforcement (Document ID: DAFFE/CLP(99)19)].
  18. Section 18 of the Competition Act.
  19. (2002) 111 CompCas 617.
  20. Ibid.
  21. Ibid.
  22. Ibid.
  23. Case No. 54/2012.
  24. Case No. 66/2011.
  25. (2013) 1 MLJ 907.
  26. [MRTP Case RTPE No. 20/2008] dated 17 January 2013.
  27. Enacted in Indian law at section 9A of the Customs Tariff Act 1975.
  28. At the Singapore Ministerial Conference in 1996, a working group was set up to look at the interface between Trade and Competition Policy, but in face of stiff opposition from some members, including India, the General Council decided to abandon this issue in July 2004.

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