In December 2018, Meng Wanzhou, the Chief Financial Officer for Huawei, a China-based tech company which is dominating the telecom supplies, was arrested in Vancouver, Canada on her flight stop to Mexico. This was done on a request from the USA with whom Canada has an extradition treaty. She was sought by the USA for allegedly dealing with Iran using an American banking system in spite of the sanctions placed on Iran by the country, in 2013. In May, Wanzhou lost the legal challenge to the extradition process, meaning that they will go ahead with the extradition proceedings.
Within days of Wanzhou’s arrest, two Canadian citizens in China were arrested on alleged accounts of spying. This is seen as a retaliation for the Wangzhou arrest by the Canadian Prime Minister Justin Trudeau, who says that there is a direct link between Wanzhou’s arrest and those of Michael Spavor and Michael Kovrig, the Canadians who are detained in China. Though China has been tight-lipped about the link between the two, these two incidents are often raised jointly by the Chinese spokesperson. David Mulroney, former ambassador for Canada to China, has said that the officials in Beijing are mirroring the ongoing extradition case to that of the detained Canadians.
Although Mr. Trudeau has in the past repeatedly emphasized the need for good relations with China, and has enthusiastically worked on them to the point of agreeing to discuss a Canada-China extradition treaty. But the China-Canada relations already started souring much before the arrest after a trade deal fell through in 2017. Many major carriers in the country, some of which have been outspoken in their support of Huawei, have decided to shun the company and opt for western alternatives instead. One of them, Bell Mobility, even announced that it will use equipment from its Finnish rival, Nokia.
Huawei is considered a symbol for China’s technological prowess, and the arrest is seen by the Chinese Communist Party as an attack on its symbol of technological achievement. The Chinese state-owned newspaper the Global Times calls the act a “political persecution launched by the US, with the intention to contain China’s high-tech development.” The China Daily also criticized the court ruling as unfair and potentially harmful in mending the Canada-China relations.
There has also been a backlash from legal experts and family members of the detained Canadians on the Canadian policy of letting the extradition charges proceed and not going with a prisoner swap. Mr. Mulroney, however, feels that it would legitimize “hostage diplomacy”, which would put at risk all traveling Canadians for arbitrary arrests to gain political leverage. There is a stark difference between the condition of the hostages and that of Meng Wanzhou, for while the two prisoners spend their days in small cells in isolation, interrupted by interrogation and bland meals, Wanzhou lives in her Vancouver mansion, being happy about the fact that she can spend more time reading and oil painting, now.
The Canadian government is also claiming that it has to let the extradition process go on without political interference as to not compromise the independent, legal decision of surrendering the Huawei CFO. Mr. Mulroney has said that “it wouldn’t be the right thing to do. It would compromise the integrity of both our democracy and our justice system,” and that their values need to count for something. Brian Greenspan, a Toronto lawyer with experience on extradition cases, has said that the government has the power to withdraw from the extradition case, and that the lessons from a previous case in which political pressure affected an international case, are being applied wrongly here.
There are many sides to this tension, complicated by previous feuds, economic decisions, the detentions of the Canadians and Wanzhou and the difference between the political and the legal, and the many opinions on whether it should be that way.
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Are India's Antitrust laws effective at controlling monopolies?
On 15th of July 2020, Reliance Industries Ltd (RIL) held its annual general meeting of the shareholders. The chairman and managing director Mukesh Ambani, announced that global tech giant Google would be investing $4.5 billion in Jio Platforms. Facebook also has acquired a 9.99% stake in Jio Platforms. This is the first time in the world that both the global tech giants have invested in the same entity. These investments have boosted the confidence for Jio Platforms and also for India’s growth but there have been questions and speculations about the potential anti-competitive makeup of these deals.
The objective of this article is to explore the interpretation and the effectuality of Antitrust laws in India.
Anti-competitive practices are those business practices which firms engage in to emerge as the or one of the few dominant firms, who will then be able to restrict inter firm competition in the industry in a bid to preserve their dominant status. The Collins English dictionary defines antitrust laws as those laws that are intended to stop large firms taking over their competitors by fixing prices with their competitors, or interfering with free competition in any way. These laws focus on protecting consumer interests and promoting a competitive market. The word ‘Antitrust’ is derived from the word ‘trust’. A trust was an agreement by which stakeholders in several companies transferred their shares to a single set of trustees.
In present-day India, talking about market dominance Reliance Industries Ltd (RIL), resembles American company—John D Rockefeller's Standard Oil Company—of the early 20th century. Mukesh Ambani holds the highest ability to influence markets and policy in every sector in which RIL is present—petrochemicals, oil, telecom, and retail. Many industry experts and critics suggest that Ambani has used his political clout to twist the regulatory framework in his favor.
Gautam Adani, founder of Adani Group | Source: Twitter
Furthermore, economic power in aviation infrastructure is clustering into a few hands as well. In 2019, the Adani Group bagged the 50-year concession to operate all the six Airports Authority of India-operated airports—Lucknow, Jaipur, Guwahati, Ahmedabad, Trivandrum, and Mangaluru—which were put up for auction. The company also obtained a controlling stake in ‘The Chhatrapati Shivaji Maharaj International Airport, Mumbai’ from GVK Airports. Moreover, Adani Group is now set to construct the Navi Mumbai International Airport. The group is now eyeing Indian Railways while they have already established an alarming monopoly in green energy and sea ports. While Airports are natural monopolies, one private company controlling more than 8 important airports is not good news to airlines.
India has established antitrust laws to promote competition. For 40 years, India followed the Monopolies and Restrictive Trade Practices Act 1969 (MRTP). This act was based on principles of import substitution and a command-and-control economy. However, over time several amendments had to be made to the act. In 2002, the Indian approved a new comprehensive competition legislation. This is called the Competition Act 2002. The act focused on regulating business practices in order to prevent practices having an appreciable adverse effect on competition (AAEC) in India. The act primarily regulates three types of conduct: anti-competitive agreements (vertical and horizontal agreements), abuse of a dominant position, and combinations such as mergers and acquisitions. The act lists out the cartel agreements that it intends to prevent. This list includes price-fixing agreements, agreements between competitors seeking to limit or control production, market-sharing agreements between competitors and bid-rigging agreements. These agreements are called “cartel” arrangements.
The competition Act is enacted by the Competition Commission of India (CCI), which is exclusively responsible for the administration and enforcement of the Act. It comprises a team of 2 to 6 people appointed by the government of India. The CCI has previously handled high-profile cases. In 2018, CCI imposed a fine of Rs135.86 crore on Google on the grounds that Google misused its dominant position and powers to create a search bias. In another important case, the CCI, ordered a probe into Idea, Vodafone and Airtel when Reliance Jio owner Mukesh Ambani lodged a complaint against the three for forming a cartel and denying Jio the POI required for network connection, causing multiple call failures. The Cellular Operator Association of India was also probed for encouraging the same.
In some cases, the Competition Commission has been successful in tackling activities that are against the free competitive market. However, critics and economists believe that the act is now unable to adapt to the changing business environment in e-commerce, telecom, technology and the government’s role in distorting competition. Demonetization and GST drove the formalization of the economy. One consequence of them was that bigger, better organized players gained at the cost of smaller ones with lesser resources. The Insolvency and Bankruptcy Code (IBC) was designed to solve the problem of non-performing assets (NPAs) of banks. But consequentially, it has also led to a consolidation in many sectors.
However, CCI has expressed inability to consistently adjudicate punitive measures due to obligation in several cases. This points to the loopholes in the very provisions of the Competition Act 2002. In an Economic and Political Weekly (EPW) article, Aditya Bhattacharjea—an Economist—argues that even though the 2002 Act represents an improvement from the MRTP Act which was extremely restrictive, the present act also remains riddled with loopholes and ambiguities. According to Bhattacharjea, this creates unnecessary legal uncertainty, which acts in advantage of lawyers and law firms. For instance, the act allows the CCI to leave some scope of flexibility for “relative advantage, by way of contribution to the economic development.” Bhattacharjea argues that this may allow large firms to justify their anti-competitive practices in the name of development.
Mark Zuckerberg and Mukesh Ambani having online interaction after Facebook invested in Jio Platforms | Source: NDTV
Data portability plays a significant role in determining market power of certain firms. In 2017, the CCI closed cases against both WhatsApp and Jio involving allegations of predatory pricing and privacy violations. In both these decisions, the regulator did not consider the restrictions around data portability as a competitive advantage. The possible data leveraging advantage for the attempted monopolization could be the ‘portfolio effect’. Portfolio effect refers to increasing the range of brands, by bundling of telecom or messaging service and other service offerings or illegal vertical restraints, even predatory pricing. This in turn may lead to greater ability of further leveraging, deterring innovation and results in degradation of quality. Another possible advantage is explained as the theory of leveraging. The best example of leveraging is when Microsoft entered the media-player market by extending its quasi-monopoly on the operating systems market by taking advantage of the indirect network effects. In case of Facebook acquiring 10% of Jio’s shares, it is a concern that both entities could potentially use WhatsApp’s market dominance in telecom and social networking services and establish dominance in e-commerce market through anticompetitive acts.
There was a consensus among Indian policymakers at the time of the 1991 economic reforms that economic liberalization would eliminate the nexus between the business elites and the policymakers. On the contrary, the relationship between these two groups got further strengthened.
On the other hand, few critics and industrialists argue that extreme restrictions on growing companies hampers the progressive growth of the national economy. While RIL’s Jio looks like a cause for concern, the company has also saved Rs. 60,000 crores for annual savings in India. In addition to that, the entry of Jio to the telecom industry has led to a rise in data consumption and improved accessibility and affordability of the internet across the nation.
However, the concern still lingers as the question of whether this growth is a result of actual innovation or crony capitalism remains unsolved.
However, the fact that telecom, organized retail, ports and airports have two or three players controlling the bulk of the sector needs to be addressed. A healthy competition is quintessential for long-term growth and innovation. Harmful trade practices and cartelization does not only affect small manufacturers but also the general public.
The government, CCI and other lawmakers must closely examine the present laws and provisions and need to see if they are required to amend the act.
