INDIA Law and Practice Contributed by: Anshuman Sakle, Anisha Chand, Pranjal Prateek and Soham Banerjee, Khaitan & Co
• detailed explanation (for each overlapping activity) outlining the absence of competitive impact in the identified markets in India; and • overview of the sector to which the transaction belongs. Additionally, for Form II, parties are also required to provide detailed responses on a series of questions pertaining to the market structure for each overlap - ping market and details of operations by the parties and their competitors in each relevant market. The following documents are to be submitted to the CCI along with the merger notice: • copy of the executed transaction documents (if these are in any other language, except English, the original document and a translated copy, accompanied by an affidavit confirming that the original and translated copies are the same); • annual report of the parties; • documents considered by the board of directors of the parties for undertaking the transaction; and • ancillary documents, which include: (a) corporate authorisations for the authorised rep - resentative of the acquirer (including for legal counsel), (b) a declaration stating that information submit - ted in the filing is true and correct, and (c) an affidavit stating that confidential information (such as transaction details, market shares) included in the merger notice are not available in the public domain – the affidavit requires apostille (if executed in a foreign country) and notarisation (if executed in India). 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification If the CCI observes that information included in a filing is incomplete, the CCI will typically issue a request for information to collate such information from the par - ties. Once parties furnish such information, the CCI will continue its inquiry. Where parties continuously refuse to furnish informa - tion as requested, the CCI may invalidate the notice and ask the parties to file a fresh merger notice. Fur -
ther, the CCI can impose monetary penalties on the parties if it determines that the parties have: • furnished inaccurate, false or misleading informa - tion; • omitted to submit any material information; or • altered or suppressed any information. An approval secured on the basis of false informa - tion or through suppression of material information can also be set aside. Typically, if parties are found to have secured an approval based on false informa - tion or oppression of information, the CCI will typically put into abeyance the approval provided earlier and ask parties to file a fresh merger notice containing all information. 3.7 Review Process The CCI’s review consists of two stages, detailed below: (i) Phase I review (initial assessment); and (ii) Phase II review (detailed investigation). • Phase I review – A transaction that is prima facie unlikely to result in an AAEC in the relevant mar - ket is cleared at Phase I. Around 99% of filings receive a Phase I approval. The statutory period for a Phase I decision is 30 days from filing, exclusive of clock-stops (ie, time taken by the parties to respond to CCI queries). • Phase II review – A transaction not cleared at Phase I proceeds to Phase II, which involves a detailed investigation into the competition con - cerns identified by the CCI in its Phase I review. Phase II review may also involve consultation with third-party stakeholders (including competitors) and public consultations. Of the approximately 1,300 combinations reviewed by the CCI to date, only around ten have proceeded to a Phase II investigation. The overall statutory clearance timeline is capped at 150 calendar days, excluding clock-stops and statu - tory delays. A transaction not cleared within this peri - od is deemed approved.
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