INDIA Law and Practice Contributed by: Anshuman Sakle, Anisha Chand, Pranjal Prateek and Soham Banerjee, Khaitan & Co
• A seven-year hold-separate arrangement between AAM and the BFL joint ventures, under which each was required to maintain independent operations, distinct branding, separate sales teams, and no co- ordination on marketing or bidding activity. • Ring-fencing of commercially sensitive information, including pricing, bid data, customer lists, product specifications, and strategic plans, between AAM and the BFL joint ventures, to prevent any flow of information that could undermine the hold-sepa - rate. 5.3 Legal Standard There is no legal standard which prescribes minimum conditions that remedies must meet to be deemed acceptable. As a guiding practice, the CCI typically assesses remedies holistically and, at minimum, rem - edies offered should be sufficient to mitigate competi - tive concerns arising from the transaction. Remedy proposals that are (i) vague, (ii) ambiguous or (iii) inef - fective at addressing competitive concerns, do not typically pass muster with the CCI. 5.4 Negotiating Remedies With Authorities The remedy process is open-ended on the parties’ side and stage-gated on the CCI’s side. As set out in 5.2 Parties’ Ability to Negotiate Remedies , the parties may offer remedies at any point during the review. In contrast, the CCI can only formally propose remedies once a Phase II investigation has been commenced. The CCI’s substantive powers are broad. It can accept, reject or modify remedies offered by the par - ties, and can propose remedies of its own. Where the CCI’s view of an appropriate remedy diverges from the parties’ position, the parties have a binary choice: (i) engage constructively with the CCI to arrive at a remedy package that addresses the AAEC concerns while remaining commercially viable; or (ii) accept that the transaction will not be cleared. 5.5 Conditions and Timing for Divestitures After passing a conditional order, the CCI can require parties to complete the remedy before the approved transaction can be closed. However, in many instanc - es, the CCI will allow the approved transaction to be closed while the remedy package is being implement - ed in parallel.
Implementation is typically supervised through a monitoring agency appointed by the CCI. The agency regularly liaises with the parties and reports on pro - gress at regular intervals, supervises timelines set out in order to ensure that parties comply with these, and serves as the CCI’s principal channel of oversight dur - As stated above, the CCI has never rejected or blocked a transaction. As a matter of practice, all conditional and unconditional approval orders are issued to the parties, and the non-confidential version of the order is also made available on the CCI’s website. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions As aforementioned, the CCI does have jurisdiction over foreign-to-foreign transactions. There is no spe - cific procedure for foreign transactions. Recent conditional approvals are discussed in 5.2 Parties’ Ability to Negotiate Remedies . ing the implementation period. 5.6 Issuance of Decisions 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Ancillary restraints are typically not reviewed by the CCI as part of the merger control process. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights There is no formal mechanism for third parties to object to a transaction. Further, their involvement in the review process is limited. Third-party involvement is permitted in the following scenarios. • Public comments – The CCI can require parties to publish details of a transaction (under Phase II investigation) in the public domain to invite comments. At such stage, third parties (such as customers, competitors, complainants, public
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