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Updates from Managing Partner
1) Act of ‘Drug Association’ of mandating NOC as prerequisite for appointment of stockiest is anti-competitive
COMPETITION COMMISSION OF INDIA, Sudeep P.M. v. All Kerala Chemists & Druggists Association
Section 3, read with section 48, of the Competition Act, 2002 - Prohibition of agreements - Anti-competitive agreements - Informant-stockists filed information alleging that despite cease and desist orders, OP and its district level associations were mandating requirement of a No Objection Certificate (NOC) prior to appointment of any stockists and fixing of trade margin at different levels of sale of medicines in contravention of provisions of section 3 - Due to such conduct, supplies of medicines had been restricted - On investigation, DG concluded that OP had been involved in practice of grant of NOC by various means such as issue of a congratulatory letter, by way of verbal approval prior to appointment of stockists by pharmaceutical companies - OP denied allegation made by informant and finding of DG and claimed that NOC was aimed at ensuring a seamless flow of products though demand and supply chain and that NOC practice did not cause any Appreciable Adverse Effect on Competition (AAEC) in relevant market - Whether burden of proof was upon OP to show that there was no AAEC and there were efficient justification for enforcing practice of NOC for appointment of stockists - Held, yes – Whether however, no evidence was furnished by OP to prove said claim, thus, OP were not able to rebut presumption that arose against them - Held, yes - Whether practice of mandating NOC prior to appointment of stockiest resulted in limiting and controlling supply of drugs in market and amounted to an anti-competitive practice, in violation of provisions of section 3(1) read with section 3(3)(b) - Held, yes
2)Regulator allows PE funds to be promoters of insurance firms with lock-in period
The Insurance Regulatory Development Authority of India has approved a proposal, which allows private equity funds to become promoters of an insurance company
“They will have to provide for future capital as required,” the official said. The minimum capital requirement for insurance companies is Rs 100 crore.
3) IBC ordinance may disqualify global PE funds from buying troubled assets
The broad sweep of Section 29 A of India’s amended Insolvency and Bankruptcy Code (IBC) may shut out several global private equity (PE) funds who have tied up at least $10 billion to invest in Indian non-performing assets.
The amended section 29(A) that makes certain persons ineligible to be a resolution applicant reads as follows:
Those being made ineligible inter alia include:
a) Willful Defaulters,
b) Those who have their accounts classified as Non-Performing Assets (NPAs) for one year or more and are unable to settle their overdue amounts include interest thereon and charges relating to the account before submission of the Resolution Plan,
c) Those who have executed an enforceable guarantee in favour of a creditor, in respect of a Corporate Debtor undergoing a Corporate Insolvency Resolution Process or Liquidation Process under the Code
d) and connected persons to the above, such as those who are Promoters or in management of control of the Resolution Applicant, or will be Promoters or in management of control of Corporate Debtor during the implementation of the Resolution Plan, the holding company, subsidiary company, associate company or related party of the above referred persons.
So technically Section 29 A of the Amended Insolvency and Bankruptcy Code implies as follows:
Any person or entity who has guaranteed the debt of any firm under insolvency or liquidation under any jurisdiction, is barred from bidding for assets under insolvency.
Any undischarged insolvent (entity unable to pay off its debt) under any jurisdiction is also barred from bidding for insolvent assets.
“This ordinance, if read literally, would in all likelihood disqualify most global private equity funds, especially those specializing in acquiring and financing troubled assets, from submitting a resolution plan under the Code,”.
04 December 2017
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