INDIA Law and Practice Contributed by: Anshuman Sakle, Anisha Chand, Pranjal Prateek and Soham Banerjee, Khaitan & Co
stakeholders) can review the details provided and provide their comments/objections to the transac - tion. • Outreach by the CCI – As a part of its review pro - cess, the CCI may independently consult competi - tors/customers and seek feedback. This is typically undertaken only when the transaction is likely to result in competitive concerns. • Independent submissions – Third parties can inde - pendently write to the CCI to record their objec - tions to a notified transaction. However, there is no legislative obligation on the CCI to consider these submissions. 7.2 Contacting Third Parties The CCI will reach out to third parties if it appears that the transaction will raise competitive concerns. It will typically share a questionnaire with third parties to col - late the necessary data. If deeming it necessary, the CCI can undertake market tests of remedies offered by the parties. 7.3 Confidentiality For context, a filing with the CCI involves submis - sion of two versions: (i) a confidential version, with all confidential information (including business secrets) included, and (ii) a public version, where all confiden - tial information is redacted. The CCI grants confidentiality only on confidential/ commercially sensitive information that is not availa - ble in the public domain and, if disclosed, could result in commercial harm to the transacting parties. Filings and other submissions made to the CCI (both confidential and public versions) are not ordinarily available for inspection by third parties. However, anything that appears in the CCI’s public order will have been drawn either from the public version of the submissions, or from material in respect of which the parties have expressly waived confidentiality. Pertinently, the public order of the CCI will include a high-level description of the transaction. 7.4 Co-Operation With Other Jurisdictions Since its inception, the CCI (through its International Cooperation Division) has established co-operation
agreements and memoranda of understanding with antitrust regulators globally. It has entered into co- operation agreements with the following key jurisdic - tions (among others): Australia, Brazil, Canada, Egypt, Mauritius, Russia and the United States of America. Through this, the CCI fosters and maintains relation - ships with multiple agencies to (i) strengthen inter - national co-operation and (ii) facilitate information sharing. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review The Indian merger control regime provides a multi- pronged judicial review process. Parties aggrieved by a decision/order of the CCI can approach the follow - ing bodies. • National Company Law Appellate Tribunal ( NCLAT ) – As a first step, the CCI order can be appealed before the NCLAT. • Supreme Court of India – Any decision of the NCLAT can be appealed before the Supreme Court. • High Courts ( Judicial Review ) – Transacting parties may also seek review of CCI/NCLAT orders by fil - ing a writ petition with relevant High Courts. These petitions are only accepted for review by applicable courts if it can be shown that the order: (a) suffers from procedural irregularities; (b) involves a gross violation of principles of natu - ral justice; or (c) breaches constitutional rights. 8.2 Typical Timeline for Appeals Appeals to NCLAT and the Supreme Court of India can be filed within 60 days from the date of the order. However, depending on the discretion of the NCLAT and the Supreme Court of India, appeals can also be admitted after expiry of the 60-day period, so long as
there are justifiable reasons for the delay. 8.3 Ability of Third Parties to Appeal Clearance Decisions
Third parties can appeal a merger control decision. Such instances have been limited in the past. For instance, in the global combination involving Lafarge
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