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[null,"Prepared By:","Contributors:"]
[null,"Shardul Amarchand Mangaldas & Co","Pallavi Shroff"]
[]
[]
[]
["Sustainability and Competition Global Practice Guide"]
[]
["Report Generated: 5/1/2025"]
[]
["View your report results on next tab"]

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["Question","India"]
["Lex Mundi Sustainability and Competition Global Practice Guide"]
["Are ESG measures/sustainability agreements included in your jurisdictional competition regime?","In India, the \nCompetition Act, 2002 (\"\nCompetition Act\") does not expressly contain any reference or exemption for ESG measures or sustainability agreements. However, there are certain enabling provisions in the\n Competition Act that can be used to defend/promote ESG measures or sustainability agreements.\nFor example, the \nPreamble to the \nCompetition Actexpressly contextualizes its provisions within the broader framework of the ‘economic development of the country' and recognizes consumer interest as one of its goals.\nFurther, the cartel prohibiting provisions provide an opportunity for joint ventures between competitors to demonstrate efficiencies to rebut the presumption of having an appreciable adverse effect on competition (\"\nAAEC\") in the market. However, whether these efficiencies include ESG/sustainability measures remains untested.\nThe \nCompetition Act also does not contain a provision for parties/competitors to seek pre-approval of their agreements which may raise competition concerns. The Competition Commission of India (\"\nCCI\") assesses all agreements ex-post, and therefore the parties are required to self-assess any collaborations between them.  \n"]
["If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022?","Currently, there is no indication that any new regulation that deals with ESG measures or sustainability agreements will be introduced.  \n"]
["Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct?","The \nCCI has not issued any guidance on ESG measures or sustainability agreements as factors to be considered in competition analysis while assessing mergers or any other conduct.\n"]
["Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG?","The \nCCI has not published any guidance regarding competitor collaborations or participating in industry working groups, specifically addressing ESG measures. The \nCCI’s decisional practice has provided some general guidance on horizontal competitor collaboration, however, the application of such guidance to facilitate ESG measures remains untested.\n"]
["Can parties seek specific guidance from authorities on proposed ESG initiatives?","As mentioned above, the \nCompetition Act does not contain a provision for parties/competitors to seek pre-approval of proposed collaborative agreements which may raise competition concerns. The \nCCI assesses such agreements ex-post, and therefore the parties are required to self-assess any collaborations between them.\n"]
["How, if at all, does your jurisdiction quantify or calculate the ESG effects?","Currently, the \nCompetition Act does not offer any guidance on a method to calculate ESG effects which may stem from an agreement or a combination.\nSection 19(3) of the \nCompetition Act, however, sets out a few positive factors to be considered by the \nCCI to assess whether an agreement would cause an \nAAEC in the market. These factors include (a) accrual of benefits to consumers; (b) improvements in production or distribution of goods or provision of services; and (c) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.\nSection 20(4) of the \nCompetition Act sets out a few positive factors which the \nCCI may consider while assessing whether a proposed combination causes an \nAAEC in the market. These include (d) nature and extent of innovation; (e) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have an appreciable adverse effect on competition; and (f) whether the benefits of the combination outweigh the adverse impact of the combination if any.\nSuch factors may be argued to include ESG-related defenses, but remain untested.  \n"]
["What does your legal authority currently permit even if your agency is not yet active on this topic?","As mentioned above, the cartel prohibiting provisions provide an opportunity for joint ventures between competitors to demonstrate efficiencies to rebut the presumption of having an \nAAEC in the market. However, whether these efficiencies include ESG/sustainability measures remains untested.\n"]
["Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description.","Although the \nCompetition Act does not offer any provision or guidance on ESG/sustainability measures, the \nCCI has taken some non-competition factors into account in a few cases which may extend to expanding ESG defenses in the future.\nThe \nCCI has shown a sensitivity to broader economic/social goals in its decisional practice but hasn’t recognized the ESG goals of companies specifically. With India being hard hit by the COVID-19 pandemic, the \nCCI had an opportunity to take the economic hardships of the market in the imposition of penalties on \nMSMEs, where even clear cartel conduct was not penalized with a fine, and only cease and desist orders were passed.\nThe \nCCI has also previously considered the broader public interest goals of the government while assessing potential offending conduct to have not violated the \nCompetition Act.\n"]
["Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation?","The \nCompetition Act is only enforced by the \nCCI, and no private action/class action can be initiated with regard to ESG or any other conduct.\nSection 19(1) of the \nCompetition Act empowers any person, consumer, or their association or trade association to file information with the \nCCI to facilitate an inquiry into any alleged contravention of the \nCompetition Act. The \nCCI is also empowered to investigate problematic conduct suo moto i.e., on its on motion.\n"]