Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Merger Control
Can the parties negotiate remedies to address any competition concerns identified? If so, what types of remedies may be accepted?

Answer ... Yes. The parties can voluntarily propose remedies at any time before the Competition Commission of India (CCI) expresses its prima facie opinion about the transaction (ie, prior to initiating a Phase II review). The parties can also propose structural and/or behavioural remedies in their response to a show-cause notice issued by the CCI.

Once a Phase II investigation has commenced, the CCI - typically in discussion with the parties - will issue a proposal for modification setting out the scope, manner and conditions of its proposed remedies. Once the CCI has issued its proposal, the parties can suggest amendments by way of a counterproposal. If the counterproposal is accepted by the CCI, the transaction will be approved. However, if the CCI rejects the parties’ counterproposal, the parties are given 30 calendar days to accept the CCI’s initial proposal. If the parties fail to accept this proposal, the transaction is deemed to cause an appreciable adverse effect on competition and is considered void. However, to date, the CCI has not blocked any transaction on account of the parties’ failure to accept its proposal.

While the parties can propose behavioural and/or structural remedies, the CCI has thus far preferred structural remedies or a combination of both, while approving transactions in Phase II. Most recently, in Schneider/L&T (C-2018/05/573), the CCI cleared its first-ever Phase II transaction solely on the basis of behavioural remedies.

For more information about this answer please contact: P. Ram Kumar from Talwar Thakore & Associates
What are the procedural steps for negotiating and submitting remedies? Can remedies be proposed at any time throughout the review process?

Answer ... Please see question 5.1.

For more information about this answer please contact: P. Ram Kumar from Talwar Thakore & Associates
To what extent have remedies been imposed in foreign-to-foreign transactions?

Answer ... The CCI has imposed structural and behavioural remedies, or a combination of both, in many foreign-to-foreign transactions, including Holcim/Lafarge, ChemChina/Syngenta, Dow/DuPont, FMC/DuPont, Agrium/Potash Corp, Bayer/Monsanto and Linde/Praxair. The CCI does not have a bright-line formula to determine the extent of remedies that are acceptable. The CCI has imposed structural remedies ranging from the divestment of a few assets of one party (Dow/Dupont) or both parties (Linde/Praxair) and the divestment of structural links (Agrium/Potash Corp) to a clean sweep of the Indian entity (Holcim/Lafarge).

For more information about this answer please contact: P. Ram Kumar from Talwar Thakore & Associates