Thursday, May 2, 2013

SG on FA - ; bl ON inflation et al ! ICL - EC or CCI- Powers to investigate and interfere wrt a 'non-compete caluse' ('ancillary restraint') !

A plot to destroy RBI

More to policy than rate cut


When will China grow up?


2. Competition Law Risks: Non-Compete Clauses in M&A Transactions – Part 2


"Regulations 19(2) of the Combination Regulations. The parties agreed to (a) limit the duration of the non-compete obligation to..."

" Some of the main points that parties could bear in mind while drafting non-compete clauses, include:

- the duration of the non-compete should be reasonable in length;
- the scope of the non-compete activity must relate to the particular economic activity in order to avoid broad non-compete obligations that prohibit competition outside the scope of the transaction;
- any restrictions imposed by the use of the non-compete clause must be  directly related and reasonably necessary for the implementation of the transaction;
- any geographic restrictions imposed by way of non-compete obligations must not operate as market-sharing arrangements; and
- in relation to India, the operation of the non-compete clause does not result in an appreciable adverse effect on competition."

KEY NOTE: Anyone having reasonable experience, exposure, so on, in such or similar matters, - e.g. in the field of international taxation, cannot but readily realise that the suggested points of cauton are, in the ultimate analysis, so nebulous , nay dubious; so much so, could be of no help to avoid or obviate the possibility of the CCI  not taking an 'objective view', profoundly justifiable under the largely accepted principles of jurisprudence, or natural justice; especially, from the view points of a business /commercial enterprise in general, the parties to a given transaction in particular. If one were to proceed on that premise, expectation of any finality or well considered and reasoned or logical conclusion if any dispute, might, to say the least, remain a pipe dream - no less impossible than an attempt to reach the horizon.

In support, and to readily demonstrate the wisdom behind such a conviction as abovesaid, consider the mutually contradicting views being / continue to be taken by courts, in India, besides else(every)where across the globe, -also of the inconclusive debate, discussions, deliberations, etc. indulged in, in professional circles, - on the special enactments governing the obnoxious concept of - 'transfer pricing'. (UNEDITED)

For a look into something latest:
(338.2 KiB, 178 DLs)Download: kodak_cross_border_transfer_pricing_030513.pdf

Transfer Pricing: Domestic leg of cross-border deal, even if consequential to overseas deal by parent AE, not covered if terms not dictated by parent AE

An excerpt:
.....The Department’s argument that the legal character of the assessee and the other enterprise be disregarded due to the influence of the agreement between the foreign holding companies is not acceptable (Vodafone vs. UOI 341 ITR 1 (SC) followed);..."

1. Competition Law Risks: Non-Compete Clauses in M&A Transactions – Part 1

“....However there are times when non-compete clauses incorporated in M&A transactions and joint ventures carry the risk of infringing competition law....”
“...The article also highlights the importance of drafting non-compete clauses in compliance with competition law....”
The subject of the write-up is prima facie one of those several of the kind falling under a highly specialised category. That is one on  which not everyone , even  a  concerned leading business house   or  its  advising expert / law professional ,  could reasonably be expected to be so equipped as to understand and appreciate the vagaries  of the legal requirements;  in  particular, seriousness or otherwise of the inherent exposures  likely to be faced with under the law on competition,  by reason of a non-compete clause (imposing an ‘ancillary restraint’) in a contract agreement (s)  evidencing the referred type of transaction (s)  .
Nonetheless, even as a novice, one may have a point of basic doubt to raise, calling for clarity, having in mind the generic  principles of the law on contract. That is, in a case in which there is any such objectionable clause, but the parties, for practical reasons, do not choose to, and hence raise no objection or litigate on . The doubt is, - is it still within the powers of competent authority (EC or CCI) to decide and rightly initiate and pursue any investigation of the type in contemplation.  
  (unedited; but believe the point of doubt soliciting clarification has been made clear/in any event, not difficult to be understood by a law expert)

<><> To dilate (on a second thought):
In short, the point of doubt is this: - Will EC or CCI be well within its powers  to  initiate any action/investigation even if it is not approached by either party to the contract agreement  claiming to be aggrieved by reason of a non-compliance with the agreed terms ?
What is the strict legal position, or a better view, even if it entails a far reaching effect/consequence, from the angle of ‘public interest’ ( in its commonly acceptable/accepted sense) ?

“... In Europe, the 2005 Notice on restrictions directly related and necessary to concentrations (the “Ancillary Restraints Notice”) provides clarity and guidance on the treatment of non-compete clauses.....”  
May be so; but then, >
Any common reader of a financial /economic daily or journal may remember to have read  about ‘Tobin Tax’; but many may not have necessarily read or come to know  about the controversy raging within the European community  itself  on the propriety/legitimacy , or otherwise of the levy.

As per the report @, George Osborne speaking against the levy, said, -

"I am not against financial transaction taxes in principle," .....But I am concerned about the extra-territorial aspects of the European commission's proposals."


Thinking aloud, - does not the EC’s powers to veto the “Ancillary Restraints” suffer from a like blemish and lends itself scope for being validly challenged on the ground of its “extra territorial aspects” !


That is, of course, a separate topic of interest, left for law experts to explore. In one’s conviction, however, in the context herein, any reference to CCI is, most certainly, to an altogether different ‘kettle of fish’.

Key Notes:

<!--[if !supportFootnotes]-->[1]<!--[endif]--> The European Commission investigated Telefónica and Portugal Telecom in 2011 and investigated Areva and Siemens in 2010.
<!--[if !supportFootnotes]-->[3]<!--[endif]--> The European Commission fined Telefonica and Portugal Telecom EUR 66894000 and EUR 12290000 respectively for agreeing not to compete with each other.
<!--[if !supportFootnotes]-->[4]<!--[endif]--> Case COMP/39736 dated 18/06/2012

Art 17 (for ready read):

e Treaty on the Functioning of the European Union.

Article 17 [edit]

1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.
2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
3. The Commission's term of office shall be five years.
The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.
4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
(a) lay down guidelines within which the Commission is to work;
(b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body;
(c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission.
A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Affairs and Security Policy shall resign, in accordance with the procedure set out in Article 18(1), if the President so requests.
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 234 of the Treaty on the Functioning of the European Union, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from the duties that he carries out in the Commission.

For an informative read:

European commission | World news | The Guardian


European Commission News - The New York Times


Britain is mounting a legal challenge to plans by 11 European nations to adopt a new financial transactions tax amid concerns that the plan will affect banks and institutions in countries outside the scheme.
The scheme, also known as a Tobin tax, would put a levy on all euro transactions anywhere in the world. But hopes for it suffered a setback when George Osborne said in Washington that the UK was taking the case to the European court of justice (ECJ).
"I am not against financial transaction taxes in principle," the chancellor said, noting that the UK put stamp duty on shares. "But I am concerned about the extra-territorial aspects of the European commission's proposals."
Earlier this year 11 countries – Germany, France, Spain, Italy, Belgium, Portugal, Greece, Austria, Slovakia, Slovenia and Estonia – said they had formed a "coalition of the willing" that would allow them to forge ahead with the new tax despite the misgivings of other member states.
Despite opting out of the scheme, Britain and other non-participating members had until Thursday to launch a legal challenge to the specific proposals for the levy drafted in Brussels. Osborne confirmed this had been done, but said Britain's concerns were shared by a number of other countries including the US. The chancellor has also expressed his concerns to the German finance minister Wolfgang Schäuble.
Britain's objections concern the scope of the tax. Treasury sources said under the current plans it would be levied on a trade in a euro-denominated financial instrument conducted in Singapore by two American banks, for instance...........

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