Private enforcement of competition law : tussle between traditional & alternative forums and reliefs

Abstract

Indian economy had traditionally been a closed economy and with the market majorly being under the control of government only, and disputes concerning competition in the market were regulated and dealt under the Monopolies and Restrictive Trade Practices Act, 1969. With the advent of liberalisation and the new economic policy in the year 1991, India liberalised its trade policy and brought the three pillars, i.e. Liberalisation, Globalisation, and privatisation into force. The new economic policy brought a paradigm shift and market was now made open for new private players as well. With the change introduced in the economic and trade policies, the market circumstances also changes and compelled the necessary change in law as well. Therefore, the existing Act i.e., Monopolies and Restrictive Trade practices Act was considered no more suitable to deal with the market circumstances. This led to the passing of a new enactment in the year 2002, i.e., the Competition Act, 2002 to deal with various problems related to anti-competitive practices, ensuring and promoting fair and healthy competition in the market, etc. In the present times, claims relating to competition law have been on a rise. The concern no more just relates to regulating competition or curbing anti-competitive practices, but also ensuring effective deterrence by imposition of fines, and remedying the affected parties through compensation. Since the market and its scenario are continuously changing therefore the need of the hour is not only confined to just punish and create awareness but also to make good the losses suffered by the aggrieved party. This approach of compensating for the losses to the aggrieved party highlights the need to have private enforcement of competition law. This paper will attempt to adjudge the ambit and scope of private enforcement of competition law and its applicability in India. Also, this article will focus on the various problems and lacunae present in the present legislation due to which the private enforcement is an underutilized aspect. Also, this article will focus on UK & EU jurisdiction and will try to compare and analyse the same with Indian Jurisdiction.