Naval is a partner in the firm’s competition law practice, focusing on complex enforcement and merger cases. He is the only Indian lawyer to feature in Global Competition Review’s “40 under 40” list. He has consistently featured in WWL: Competition (2012–2018), which has recognised him as a “Thought Leader” and a “Future Leader”. He was recently involved in successfully obtaining an infringement decision against Google; and in obtaining clearance for the Bayer/Monsanto transaction.
WHAT MOTIVATED YOU TO BECOME A LAWYER?
In India, at a very early stage in life, one is aware of the inequality prevalent in society – the divide between rich and poor, man and woman (even now!), and on the basis of caste and religion. I was motivated by a desire to address this injustice. The law, in my view, is the only effective way to address these issues and India, in particular, has a rich history of courts playing an interventionist role, especially where the legislature has failed.
HOW HAS THE WORK OF A COMPETITION LAWYER CHANGED SINCE YOU FIRST STARTED PRACTISING?
Competition law was and has remained an exciting and growing practice area. From being unknown, it has gone to being the first choice of the bright and best emerging from law schools. Law schools in India are also teaching competition law as part of their regular curriculum.
The work of a competition lawyer is ever increasing but is slowly getting specialised. Lawyers are actively making a choice between doing enforcement and merger specific work. Everyone in this area is now also having to keep abreast with the latest in technology and intellectual property.
WHAT HAS BEEN THE MOST MEMORABLE CASE OF YOUR CAREER SO FAR?
I have three most memorable cases!
First, defending the fee waivers of the National Stock Exchange where the Competition Commission of India (CCI), by a majority of four to two, found against us – and then appealing this to the Competition Appellate Tribunal and subsequently to the Supreme Court, where the matter is currently pending.
Second, obtaining approval from the CCI of the acquisition by PVR of DT Cinemas where their market share increased from 36 per cent to 78 per cent in some of the overlapping markets.
Finally, representing Martimony.com in an abuse of dominance complaint against Google, where Google was found to have engaged in search bias.
HOW DO YOU THINK THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL HAS PERFORMED SINCE IT WAS ESTABLISHED LAST YEAR?
I believe that a specialist appellate tribunal was necessary for appeals from the CCI. That said, despite the overwhelming workload of the NCLAT, it has worked tirelessly to deal with competition appeals.
INDIA’S LENIENCY REGIME WAS UPDATED IN AUGUST 2017. HOW HAS THIS AFFECTED LENIENCY APPLICATIONS? ARE FURTHER CHANGES NECESSARY?
Cartel work in India has received a much-needed kick-start from the amendments to the leniency regime, and more importantly from recent CCI decisions where the CCI was generous in granting leniency. I expect a spurt of leniency applications, dawn raids and activity before the CCI.
In order to sustain this, it is imperative that the CCI does not trip up in following due process and respecting the rights of the defendants. Ideally, another round of amendments are necessary to address issues such as timing and the scope of disclosure, which are currently pending before the Delhi High Court.
THE CCI RECENTLY ANNOUNCED PLANS FOR COMPULSORY NOTIFICATION BY PRIVATE EQUITY FIRMS OF SHARE PURCHASES OF OVER 5 PER CENT IN A SECTOR IN WHICH THEY ALREADY HAVE AN INVESTMENT. DO YOU THINK THIS AMENDMENT TO INDIA’S MERGER CONTROL REGULATION IS NECESSARY?
No – it’s an unnecessary proposal that will only increase compliance requirements and transaction costs for PE funds. It will result in a number of benign investments being notifiable to the CCI, and is against the government’s general principle of easing the process of doing business in India.
THE INDIAN GOVERNMENT REDUCED THE NUMBER OF DECISION-MAKING MEMBERS AT THE COMPETITION COMMISSION FROM SEVEN TO FOUR IN APRIL. HOW WILL THIS AFFECT THE AUTHORITY’S ENFORCEMENT EFFORTS?
I believe that this is a step backwards. Given the dynamic nature of competition law and enforcement, it is necessary to have varied views as has been evident from the CCI’s own jurisprudence. The government’s alleged “right-sizing” of the CCI will reduce the diversity of opinions, which is unhealthy for a young authority. More practically, given the quorum requirement of three members, it could result in delays in decision-making.
WHAT ARE THE BIGGEST CHALLENGES FACING THE INDIAN COMPETITION MARKET RIGHT NOW?
First, ideology. Globally competition law is recognised as a means to protect the process of competition; however, in India, often it is misused as a tool to protect competitors.
Second, an overzealous approach towards notifications by private equity investors and sovereign wealth funds could stymie foreign investment in India. This could also result in the government intervening and watering down the merger control regime which would not be good for competition in India.
Third, the CCI maintains that it is an expert regulatory authority, and therefore is not required to strictly follow the trappings of a court. Accordingly, due process issues such as the right to cross-examination and hearing testimony from expert economists have not been resolved or implemented effectively. Such failures only reduce the quality of the CCI’s decisions and make them susceptible to challenge in appeal.
Finally, competition law in India will truly come of age once follow-on actions for compensation are decided upon. I believe this time is not too far away.