Competition law talks in terms of economic market in relation to product and geographical which are distinctively homogeneous, and can be distinguished from conditions prevailing in any other market.  In an attempt to define such market, it is entirely possible that it may be spread across various nations. Laws which govern are generally national and have territorial implications while markets have become international in various cases. Like in the recent judgment of WhatsApp the Competition Commission of India (Case No. 99/2016), [i] appreciated that the impact which particular policy change of the WhatsApp are “Global”, but they had to stick to India for purposes of evaluating the same.

Thus, for similar cases need for international competition law and international cooperation amongst various competition /antitrust authorities for various purposes including imposing of injunctions and other relevant remedies, obtaining evidences which might not be accessible otherwise, and also enforcing judgments, especially in a case where the company does not have any registered office in the country where it is found in breach of competition law, arises at this juncture.

This article attempts to sources for International Competition law which might be enlisted in treaties whether bilateral or multilateral platforms and also international principles of competition law which are widely accepted throughout the world which might have binding nature over Competition Commission of India.

Case for Extraterritorial application of Competition Law

National Competition law in many ways are meant to self-serve the interest of the nations. Competition law of one nation may not generally apply to foreign firms until and unless such enterprise seem to have an adverse impact on their domestic economic markets and many say this is means to counter “cross border economic terrorism” (as reiterated by Supreme Court in Haridas Export Case). It is quite common to see the cross border impact of foreign firms in the age of globalization and digitalization, with the emergence of MNC’s, INC’s, and outsourcing (to name a few common phenomena’s).

There may be broadly two solutions to such a problem, one is finding a solution at international level, and another one would be to find one at the national level. In the absence of International Biding competition policy, unilateral national enforcements have been sought for, whereby each commission on its own deals with antitrust issues based on effect particular conduct will have in its own jurisdiction. This may be proceeding from the assumption that extraterritorial conduct can be addressed at the national level through national antitrust law ( as can be seen in AGCM (Italian Competition Commission) initiating its own enquiry and imposing fine of 3 Million Euros, on WhatsApp-Facebook for changing privacy policy in spite of having European Competition Commission). [ii]But caution must be born in mind that unilateral conduct will reveal the very different story in practical situations.

In general most of the countries have tried to model their international model around that one followed by the European Union and one that of United States, thus it will be peculiar to discuss the same. Both of the regimes have in general extended their applicability of competition law beyond the national boundaries where adverse impact within their borders was found.

Extraterritorial application of US Antitrust Law

 S. 1 of Sherman Act 1890, provides for extraterritorial application of United States antitrust law. The Same principle was applauded in United States v. Aluminium Company Case [iii](Also popularly known as “Alcoa Case”) wherein “effects doctrine” was propounded, according to which any conduct of foreign firm having a detrimental effect on the domestic markets, can be enquired under US antitrust laws.

This decision was indeed met with massive backlashes around the world, with various countries attempting to prevent discovery of evidence quintessential for overseas prosecution. Like British protecting of Trading Interests Act, 1980 was enacted to block discovery; such adverse reactions were again met by US Congress by passing Foreign trade antitrust Improvement act, 1982, wherein they attempted to clarify and limit extraterritorial jurisdiction, to “direct, substantial, and reasonably foreseeable effect”, on US market.

Extraterritorial application of European antitrust law

EU nations also seem to have incorporated “effects doctrine” in their respective statutes. This doctrine was also given credence in European Courts judgment of Ahlostron Osakeytio v Commission,[iv] wherein EU’s competition rules were applied on foreign enterprise (economic entity is defined as “enterprise” under EU competition law), and affecting commerce between member states.

Extraterritorial Application of Indian Competition law

S 32 of Competition Act of 2002 gives extraterritorial jurisdiction to Commission, to inquire into conduct which may have an appreciable effect on competition within India, which may have been transacted outside India. Though s. 32 is not comprehensive in regards with what kinds of Orders may be passed in such cases, the language of MRTP act which was previously enforced in India can provide valuable light on the same. But for the present paper, it would be sufficient to limit the same to understanding that there does exist extraterritorial application of Competition law in India.

Since now we have looked at different regimes of Competition law, each having extraterritorial application which includes EU, USA, India besides these various other prominent antitrust law can be traced in Japan, Australia, Russia, South Africa, China, etc. all of them to certain extent provide for Extraterritorial application, which may have impact on international environment, thus looking at the International Competition law and its sources become important.

International Cooperation treaties

Principles of the market economy have been widely appraised around the globe since the early nineties, and subsequent to spread of competition law around the world, various treaties on the competition law has been concluded around the world. Though they may widely differ in their nature, some may provide for close cooperation (which might include facilitation for international enforcement of competition law violation), while others may contain only vague statements which are very general in nature (may possibly include only agreement to have regular talks). This agreement can be seen as a significant step towards international coordinated settlement and leniency programs for Competition law.

Bilateral Treaties

In the absence of coordinated international efforts, the problem of multilateral enforcement is mostly solved by bilateral, multilateral agreements between various antitrust agencies providing a working solution to the problem. This cooperation is primarily sought in the field of investigation, collecting evidence, claiming reliefs, and enforcement of orders, carrying business in the particular country. Thus, paving way cooperative unilateralism, wherein one agency can receive cooperative review from other organizations, and the appropriate remedy may be given.

The following table makes an attempt to identify all the Memorandum of Understanding which Competition Commission of India has entered into with different competition agencies around the world under the power bestowed under section 18 of Competition act. [v](The list may not be exhaustive, but the effort has been made to ratify the same of errors to the maximum extent.)

MOU entered between	Remarks	Date  (latest first)
Federative Republic of BrazilRussian FederationsRepublic of IndiaPeople’s Republic of China Republic of South Africa	Finalized during International Legal Forum held in Saint Petersburg, Russia	19th May 2016
Competition Commission of India (CCI) Competition Bureau Canada (CB)	Concluded on sidelines of 2014 ICN Merger Workshop, in New Delhi	1st December 2014
CCI Directorate General for Competition of the European Commission (DG, Competition)	Concluded on the sidelines of the 3rd BRICS International Competition Conference	21st November 2013
CCIAustralian Competition and Consumer Commission (ACCC)	Canberra, Australia	3rd June 2013
CCIUnited States (FTC)	Washington D.C	27th September 2012
CCIFederal Antimonopoly Service (Russia)	Moscow	16th December 2011.

The International Competition Network (ICN)

It may be noted though there does not exist any binding international platform for Competition policy, there are international forum in which competition policy is can be coordinated (mostly bilateral in nature between the antitrust agencies of different nations) the most prominent ones are International Competition Network (ICN) and the OECD, paving the way for multilateral cooperation.

International cooperation within ICN network is gaining more and more prominence, with comprising of more than 132 competition authorities from more than 120 jurisdictions across the world. It has become platform for raising issues, for competition law enforcement, setting best practices, and standards besides facilitating cooperation amongst different agencies. [vi]

The annual conference of the ICN is held in member country every year, Annual Conference of 2021 being scheduled at Abu Dhabi. [vii]

Conclusion

Progressively with the interconnectedness of markets have made different jurisdictions come to the realization to come together to enforce and enact competition laws. Almost all jurisdictions around the world have provisions for the extraterritorial application of their domestic antitrust law around the world. Which has made it necessary to enter into agreements and treaties with other nations/antitrust authorities around the world; such efforts may take place at various levels from highly coordinated ones to general statements of understanding.  

Though binding international platform does not exist as of now in competition law arena, a number of reasons, but there certainly exist multilateral platforms such as ICN providing platform for coordination at the bilateral level. Bilateral agreements entered among different nations provide substantial insight into the sources of International Competition law.  Increasing cooperation among different agencies throughout the world is certainly the way forward for the International Competition law.

Views expressed are personal, please take independent Legal advice from a professionals.

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[i] Vinod Kumar Gupta v. WhatsApp Inc.,  Order under 26(2) Case no. 99/2016  Competition Commission of India.

[ii] WhatsApp fined for 3 million euro for having forced its users to share their personal data with Facebook, Press Release, Autorita Garante Della Concorrenza E Del Mercato, 11 May 2017.

[iii] United States v. Alcoa, 148 F.2d 416 (2d Cir. 1945).

[iv] Ahlström Osakeyhtiö and others v Commission of the European Communities, C-89/85.

[v] International Cooperation, Competition Commission of India, http://www.cci.gov.in/international-cooperation (last accessed on 6th Sep 2017).

[vi] About ICN, Competition Commission of India, http://www.cci.gov.in/about-icn (last accessed on 6th Sep 2017).

[vii] Competition Commission of India (CCI) selected to host ICN 2018 Annual Conference in New Delhi in March –April 2018, Press Information Bureau, Government of India, Ministry of Corporate Affairs, 09-November-2016.