THE PARADOX BETWEEN SECTORAL

REGULATION AND COMPETITION LAW: NEED OF

EVOLVING A MODEL OF COOPERATION TO
RESOLVE COMPETITION DICHOTOMY

COMPETITION LAW- RESEARCH PAPER

SUBMITTED TO: SUBMITTED BY:

DR. MAUSAM NAME: DEVANSH TIWARI

ASSISTANT PROFESSOR SEMESTER: VIII

LAW SECTION: A

ROLL NO.: 1231

NATIONAL UNIVERSITY OF STUDY AND

RESEACH IN LAW, RANCHI

1|Page
 THE PARADOX BETWEEN SECTORAL REGULATION AND COMPETITION
LAW: NEED OF EVOLVING A MODEL OF COOPERATION TO RESOLVE
REGULATION/COMPETITION DICHOTOMY

ABSTRACT

The constant rise in India of regulatory bodies overseeing economic reforms has resulted in
multiple instances of jurisdictional overlay and inefficient results. This paper aims to analyse
the inception of the proliferation of a sector-specific regime in India through a historical
perspective. The article takes into account the challenging question concerning the
relationship between sectoral regulations and competition law. It analyses the genesis of
regulatory jurisprudence in the Indian context explaining the complementarities and
contradictions of the same. Further, it elucidates how sectoral regulatory bodies circumscribe
the role of the competition authority. In order to elaborate on the regulation/competition
dichotomy, this article also takes into consideration two case laws, that of Ericsson v. CCI
and CCI v. Bharti Airtel and Ors.

Finally, the last section throws light on two internationally accepted models of the
regulation/competition interface, specifically, the Exclusivity model and the Concurrent
model; it describes their distinct features, the disadvantages they pose and suggests the novel
way forward. Accordingly, the article proposes to expand the competition enforcement by
adopting a “rule-making” approach in order to reduce the market-wide uncertainty, cost of
litigation and would yield predictable results. The latter is founded on a hybrid-mutual-
influence approach and intends to reduce the current friction existing between the regulatory
and competition bodies in India.

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 TABLE OF CONTENTS

I. INTRODUCTION..............................................................................................................4

A. Unregulated to Regulated Economies: Rise of Sectoral Regulators...........................4

B. Broad mandate under section 18 of the Competition Act, 2002..................................5

C. Ill-design of the Competition Act, 2002.......................................................................6

II. NO MAN’S LAND: INTERFACE BETWEEN COMPETITION AND SECTORAL

REGULATIONS....................................................................................................................8

A. Juxtaposition of Competition Law and Sectoral Regulations ..................................... 8

B. The Regulation/Competition Dichotomy: “Case-by-Case” Comprehensive Study..10

III. MODEL OF COOPERATION AND THE WAY FORWARD:..................................14

A. The Fallbacks of Concurrency Model.......................................................................14

B. The Way Forward: Expanding the competition Enforcement by “Rule Making”....15

IV. CONCLUSION.............................................................................................................17

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 I. INTRODUCTION

“Victory comes from finding opportunities in problems.” As far as this article is concerned,
both Competition law and Sectoral regulations are legal responses to economic problems, but
the victory looks far-flung and remote. Economic regulation and competition policy are
largely interdependent instruments of economic policy. However, they differ in aims and
objectives resulting into an overlay problem. The then Chief Justice of the U.S. Supreme
Court, Stephen G. Breyer, J. & Khan states, “Antitrust is an alternative to regulation and
where feasible, a better alternative.”1 On the contrary, we have empirical studies and data in
the field, which advocates exclusivity of sectoral regulators like in the case of Australia.2
Thus, resulting in the following: (a) uncertainty regarding the choice of marketing regime; (b)
an overlap of economic regulation and; (c) competition enforcement and jurisdictional a
dichotomy between competition and regulation. This article offers a critical and detailed
analysis of the relationship between competition and sector regulators in India also while
keeping in mind various essential international developments.

A. Unregulated to Regulated Economies: Rise of Sectoral Regulators

The adoption of the liberalization, privatization, and globalization (LPG) policy in 1991
proved to be a big step towards transforming unregulated Indian economy into regulated
economy. Prior to 1991, public interest was served more through direct government
involvement in most of the commercial transactions. Post 1991, in most sectors of the
economy, the objective of protecting the public interest rested with laws governing
competition and regulatory regimes.3 The advent of liberalization, privatisation and
globalization was accompanied by an increasingly receptive attitude towards establishment of
sectoral regulations and sectoral bodies to control various sectors and businesses coming up
after opening up of the economy. The necessity of formulating industry specific governing
statues and governing bodies was to address the rising irregularities in the economy post

1
Breyer, S., Regulation and Its Reforms, Harvard University Press (1984).
2
OECD (2010), OECD Reviews of Regulatory Reform: Australia 2010 Towards a Seamless National Economy,
<https://read.oecd-ilibrary.org/governance/oecd-reviews-of-regulatory-reform-australia-2010_9789264067189-
en#page3> Accessed on 10 May 2025.
3
Mehta, P. (n.d.). Competition and Regulation in India, 2009 Leveraging Economic Growth Through Better
Regulation. OECD.
<http://www.pradeepsmehta.com/pdf/Competition_and_Regulation_in_India2009_Leveraging_Economic_Gro
wth_Through_Better_Regulation.pdf.>

4|Page
liberalization. In order to restructure the market and to address such irregularities bodies like
Security Exchange Board of India (after 1992 Securities Scam),4 Telecom Regulatory
Authority of India, Competition Commission of India etc. were established. The first and
most important out of all of them was Securities and Exchange Board of India in 1992. But as
a result, these above-mentioned irregularities in the system, it ostensibly led to the sudden
proliferation of regulatory authorities causing frequent jurisdictional overlaps while dealing
with the same aspects of corporate, competition and commercial behaviour of sectors in the
economy.

Sector-specific regulations presents distinct challenges in competition law and policy because
although their broad goals and objectives are same i.e., to achieve allocative efficiency and
promotion of welfare5, but the legislative mandates through which broad goals are achieved
are very condescending to each other. While sector-specific regulators focus on creating an
administrative machinery to resolve behavioural issues prior to the problem (ex-ante),
Competition authorities (Competition Act, 2002)6 under their regulations addresses the
problem ex-post7 and describes how the conduct should be, in the backdrop of macro-
economic conditions. Such sector specific regulations and laws have blurred the distinction
between ex-ante regulation and ex-post competition assessment, allowing many sectoral
regulators to assume competition enforcement powers even in the absence of concrete
provisions within their governing statutes.8

B. Broad mandate under section 18 of the Competition Act, 2002

Section 18 of the Competition Act states that, “it shall be the duty of the Commission to
eliminate practices having adverse effect on competition, promote and sustain competition,
protect the interests of consumers, and ensure freedom of trade carried on by other

4
Barua, Samir & Varma, Jayanth. (1992). Securities Scam Genesis, Mechanics and Impact. INDIAN INSTITUTE
OF MANAGEMENT AHMEDABAD, RESEARCH AND PUBLICATION DEPARTMENT, IIMA Working Papers. 18.
10.1177/0256090919930101.
5
AIR 2005 SC 730.
6
The Competition Act, 2002, No. 12 of 2003, available at http://indiacode.nic.in/.
7
Ex-post economic evaluation of competition policy enforcement: A review of the literature Fabienne Ilzkovitz
and Adriaan Dierx DG Competition June 2015
8
Telecom Regulatory Authority of India, ‘Regulatory Principles of Tariff Assessment’ (Consultation Paper 3,
2017) <http://www.trai.gov.in/sites/default/files/Consultation_paper_03_17_feb_17_0.pdf> accessed 12 May
2025.>

5|Page
participants, in markets in India.”9The duty casted upon the Commission under this section is
extremely broad and can be traced in the preamble of the Competition Act, 2002.10 The duty
vested with the CCI, however, overlaps and sometimes falls short with the competition
related powers conferred on the sectoral regulators in the economy. This section was not
drafted keeping in mind the existence of various provisions addressing the competition issues
in various other sectoral regulations. Moreover, it brought every economic transaction in the
Indian economy under the ambit of this section which resulted into a chaos of overlay.
Understandably, in order to bring jurisprudential clarity over the broad mandate imposed
upon CCI under this section, there could have been certain amendment to this provision
explaining the course of action in circumstances where sectoral regulating statutes also dealt
with competition matters.

C. Ill-design of the Competition Act, 2002

Section 60 of the act states that, the act will have an overriding effect over other legislations
and will prevail above all other sector-specific statutes.11 However, on the other hand section
6212 of the act declares that, the act should be read in harmony with other statues to avoid any
scope of overlapping and conflicts.13 Therefore, we can confer that, section 60 and 62 are
paradoxical to each other in nature as section 60 administers supremacy of competition law
wherein on the contrary, section 62 enunciates the principle of harmonious construction and
complementarity between competition law and other sectoral-enactments leading to deep
condescending legislative mandates between the two.

If the triumvirate of sections 18, 60, and 62 were not sufficiently puzzling, section 21 and 21
(A) makes it more puzzling by narrowing down the scope of inter-regulatory consultation and
coordination under section 2114 & 21 (A)15 of the Competition Act. Section 21 and 21 (A) of

9
Competition Act, 2002, No. 12, Acts of Parliament, 2003, (India).
10
The preamble of the Competition Act, 2002.
11
Competition Act, 2002, s 60..
12
Competition Act, 2002, s 62.
13
146 (2008) DLT 455.
14
Competition Act, 2002, s 21.
15
Competition Act, 2002, s 21(A).

6|Page
the Act, describes the power of consultation and coordination between competition regulatory
body (CCI) and sector-specific regulator. Under the ambit of these two sections both the
authorities are empowered to consult with each other and ask for views concerning
competition, access to market, economy and technology whenever the need arises in the
course of proceedings.16 But these regulations are not mandatorily worded and are referential
only when a potential or past decision of the CCI or a sectoral regulator contradicts with the
other’s governing statute.17 It eventually, narrows down the scope of inter-regulatory
consultation and coordination. Thus, leading towards the central question of this paper that,
whether competition authorities or sector regulators should handle competition enforcement
in the sectors.

16
Mancini, J. (2021). Data Portability, interoperability and Digital Platform Competition: OECD Background
Paper. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3862299
17
Ministry of Corporate Affairs. (2018). (rep.). REPORT OF THE COMPETITION LAW REVIEW
COMMITTEE-2018. Delhi, Delhi.

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 II. NO MAN’S LAND: INTERFACE BETWEEN COMPETITION AND
SECTORAL REGULATIONS.

A. Juxtaposition of Competition Law and Sectoral Regulations

The roles and goals of competition policy and sectoral regulations are complementary to each
other, internationally. However, the legislative mandates and mechanisms exercised by them
to resolve issues are contradictory,18 which restricts them from achieving their shared
concerns of economic efficiency, consumer welfare and public good. In light of this paper,
we would like to put forward the complementarities and contradictions between competition
and sectoral regulations.

I. Two Conflicting Approaches:

The initial distinction between regulation and competition law is based upon the type of
market failures they seek to address. Generally, competition policies are focused towards
ensuring existence of fair competition, lower prices, consumer welfare and protection19 in the
market by ensuring the non-existence of anti-competitive agreements20, market dominance21,
and cartelization.22 Competition policy relies upon its economy wide approach to advocate
consumer welfare, public interests, and ease of access to small businesses into the market.
The above-mentioned aims and objectives of competition law are reflected in the preamble23
and the provisions of the Competition Act.24 Whereas, Sector-specific regulations creates an
administrative machinery that, makes changes in the market structure in order to address
market failures.25 Sector-specific regulations are based upon a very narrow perspective26

18
Anti-monopoly Law of the People’s Republic of China, s 33.
19
Ashford, Nicholas & Ayers, Christine & Stone, R.F. (2002). Using Regulation to Change the Market for
Innovation. Harvard Environmental Law Review. 9.
20
Competition Act, 2002
21
Ibid.
22
Dunne, N. (2015), Competition law and economic regulation: Making and managing markets, Cambridge
University Press, <http://dx.doi.org/10.1017/CBO9781107707481> Accessed on 11 May 2025.
23
Supra note 16.
24
Competition Act, 2002, s 36(6).

Richard A. Posner (2004), “Theories of Economic Regulation”, Working Paper, No. 41, Centre for Economic
25

Analysis of Human Behaviour and Social Institutions.

8|Page
restricted only towards a specific sector ensuring “what to do”, “how to price products” and
“barriers to entry” accompanied with “supply and quality of service.” The application of
sectoral regulations comes into the picture, only when independent nature of market
mechanisms collapses and are replaced with direct control.27

II. Ex-ante versus Ex-post:

The distinction between Competition regulations and sector-specific regulations is also based
upon the timings and frequency of their interventions. Sectoral regulations identify problems
ex-ante whereas Competition regulations identifies problems ex-post and in the backdrop of
continuous market situations. Sectoral regulations by creating an administrative machinery
tries to address market failures in an ongoing manner or before problem arises, which is
generally known as “impact assessment”. It primarily, focuses upon establishing such a
market structure which is efficient and effective that, it limits the scope of any sought of
friction and disbalance in the system. It aims at using the evidence to predict the impact of
any action (legislative/non-legislative).28 While Competition policy identifies anti-
competitive agreements ex-post in a sporadic fashion. According to Hüschelrath and
Leheyda, ex-post evaluation (retrospective) is more relevant in competition policy as it is
mainly used for the assessment of the decisions taken by the competition authorities and they
can therefore contribute to improve the quality of these decisions which is the main output of
competition agencies.29 While, ex-ante evaluations are considered to play a very minor role in
the assessment of competition policy.30 Ex-ante evaluation is only useful for short term
evaluations of policy issues. But Competition policies (ex-post) identify problems only after
they are committed and tries to redress them retrospectively by imposing negative or reactive

<https://www.nber.org/system/files/working_papers/w0041/w0041.pdf> Accessed on 10 May 2025.

26
Pike, C. (Ed.). (n.d.). Working Party No. 2 on Competition and Regulation Independent Sector Regulators.
OECD. Retrieved May 09, 2025, from <https://one.oecd.org/document/DAF/COMP/WP2(2019)3/en/pdf. >
Accessed on 10 May 2025.
27
Hewitt, G. (1999, June 24). Policy Roundtables Relationship between regulators and competition Authorities
1998. OECD. from https:<//www.oecd.org/competition/sectors/1920556.pdf.> Retrieved on 11 May 2025.
28
Ex-post economic evaluation of competition policy enforcement: A review of the literature Fabienne Ilzkovitz
and Adriaan Dierx DG Competition June 2015. Pg. 31.
29
Hüschelrath, Kai and Leheyda, Nina, A Methodology for the Evaluation of Competition Policy (2010). ZEW -
Centre for European Economic Research Discussion Paper No. 10-081, Available at SSRN:
<http://dx.doi.org/10.2139/ssrn.1727352> Accessed on 10 May 2025.
30
D Neven and H Zenger, “Ex-post Evaluation of Enforcement: A Principal-Agent Perspective” (2008) 156 De
Economist 477.

9|Page
obligations that do not preclude market competition.31 Furthermore, the Competition
authorities are not directed towards granting damages or compensation to the plaintiff as the
remedy, rather they are focused upon enforcing economy wide duties (consumer welfare and
unfair transfer of wealth)32 that, among other goals seek to promote competition across all the
sectors of economy. Conclusively, we can infer that competition law has a very profound
approach, while sectoral regulations follow a very schematic approach with reference to
competition enforcements.

B. The Regulation/Competition Dichotomy: “Case-by-Case” Comprehensive Study

According to Lord Hewart, the then Chief Justice of England, “Justice must not only be done,
but must also be seen to be done”33. The statement has now started to make more sense in the
arena of markets and economy. Prior to the evolution of unregulated system of economies
and “open economies”, justice, equity & public good were only in the influences and mercy
of “invisible hand” which governed the complete market.34But it somehow failed to convey
the visual representation of justice done in the minds of people, leading towards necessitating
the need of a public good ensuring authority (competition enforcement authority) in the
market governing various economic transactions so that “allocation of resources” can be done
judicially and efficiently without causing any undesirable results.35 Plausibly, evolution of
economies caused proliferation of regulatory authorities in the market overlapping each
other’s jurisdictional rights making the government oscillate between poles of regulation and
competition.

Since, competition law and other sectoral regulations in India are still in the process of
advancement,36 there are no easy answers, which can readily be given to the question of
whether competition authorities or sectoral regulations should handle competition

31
Pierre Larrouche, Competition Law and Regulation in European Telecommunications (2000, Hart), p. 124.
32
Hovenkamp, H. (2020). Federal antitrust policy the law of competition and its practice (6th ed.). West
Academic Publishing.
33
[1924] 1 KB 256.
34
Viner, J. (1960). The Intellectual History of Laissez Faire. THE JOURNAL OF LAW & ECONOMICS, 3, 45–69.
<http://www.jstor.org/stable/724811.> Accessed on 12 May 2025.
35
Cass R. Sunstein, Free Markets and Social Justice 3 (1997)
36
Khan, A., Prasad, D., Mapping the Journey of Competition Analysis in India: From Precedence to Evidence,
Kluwer Competition Law Blog, <http://competitionlawblog.kluwercompetitionlaw.com/2018/10/05/mapping-
journey-competition-analysis-india-precedence-evidence/>. Accessed on 12 May 2025.

10 | P a g e
enforcements in India? Therefore, it necessitates a scholarly case-by-case study of
judgements pronounced by the courts in this sphere of law for getting a fair understanding
over the issue.

1) CCI v. Bharati Airtel & Ors.

The Hon’ble Supreme Court of India in this case37 finally, showed a middle path to resolve a
long-debated issue of jurisdictional conflict between Competition authorities and sectoral
regulators drawing reference from two U.S Supreme Court judgments namely, Credit Suisse
Case38 and the Verizon Communications case.39 The facts of this case revolves around an
agreement for POI’s (“Point of Interconnections”)40 between Reliance Jio Infocomm Limited
(RJIL) and Airtel, Idea, and Vodafone for smooth interconnections.41 RJIL through various
letters filed to TRAI alleged that the augmentation of point of interconnections were not
adequate enough for the smooth functioning. In response to this allegation by RJIL, the other
parties (Bharati Airtel, Idea, and Vodafone) contended that the augmentation of POI’s as
mentioned in the agreement are enough and the real cause behind lack of smooth
interconnectivity is due to free data/call service provide by RJIL. TRAI after taking necessary
steps, recommended that Airtel is in non-compliance of the terms and conditions of license
and denial of inter connection to RJIL appears to be with ulterior motive to stifle competition
and is anti-consumer.

Furthermore, the CCI, acting on information filed by Reliance Jio Infocomm Limited (RJIL)
took cognizance of the matter under Section 19(1) of the Competition Act, 200242, ordered
the Director General, CCI to investigate against the alleged cartelization by Bharti Airtel
Limited, Vodafone India Limited, Idea Cellular Limited and the Cellular Operators
Association of India. It was alleged that OPs had cartelized to deny Jio entry into the telecom
sector by not providing it adequate Points of Interconnection resulting in call failures between
Jio and other networks. The commission held that there exists a prima facie contravention of

37
AIR 2019 SC 113.
38
[551 U.S. 264].
39
[540 US 398]
40
POI are those points between two network operators which allow voice call originating from the work of one
operator to terminate on the network by another operator.
41
Telecom Regulatory Authority of India Act, 1997 s 13 r/w s 11(1) (b)(i), (ii), (iii), (iv) and (v)
42
Competition Act, 2002 s 19 (1).

11 | P a g e
section 3 (3) of the competition act, as the Respondent service providers have entered into an
agreement with COAI, forming an anti-competitive agreement, a cartel to deny POI’s to
RJIL.

The Bombay High Court in response to the writ petitions filed by IDO and COAI, ordered
that CCI lacked jurisdiction under section 19 of the competition act, as the matter falls within
the exclusive jurisdiction of another sectoral regulatory body namely, TRAI, and the CCI
could exercise its jurisdiction only after the proceedings under the TRAI have concluded. The
Supreme Court also upheld the decision of Bombay High Court recognizing the specialized
nature of TRAI as a regulator and held that TRAI is better suited to decide such cases.

If we exhaustively, analyse this issue in relation to the above-mentioned judgment, there

subsist certain blurred lines43 in relation to the jurisdictional interface between the
competition authority and sectoral regulators; First, there are some sectoral regulators which
do carry broad declarations pertaining to competition enforcements, but there are many
legislations which do not mandate competition enforcements. Such judgments, substantiates
bad precedents as they promote sectoral regulators to expand their horizon of competition
enforcements without having any legislative backing in their governing statutes. Second, such
legislations have blurred the distinction between ex-ante regulation and ex-post competition
assessment, allowing for potential conflicts between these regulators and the CCI. Third, it
should be recognized that the primary matter of grievance reported by the informant (RJIL) in
the above case, primarily, relates to cartelization and anti-competitive behaviour, amounting
to violations under section 3 of the act. In this regard, it must be noted that none of the areas
covered Under Section 3 of the Act are covered by TRAI in its mandate as a sector regulator
for TSP. TRAI is incapable of arriving at a determination as to whether ITO’s have entered
into an anti-competitive agreement to deny PIO’s to RJIL under section 3 of the act. Thus, it
is only within the mandate of the CCI to adjudicate matters pertaining to cartelization and
anti-competitive conducts.

It should also be noted that there are no easy answers, which can readily provide a solution to
these blurred lines. As the economy matures, competition concerns will become more
important for two reasons. First, a sophisticated economy will have far more products,

43
AZB & Partners, “Role of CCI in Regulated Sectors: Overlapping Jurisdictions”, AZB Partners & Solicitors
<https://www.azbpartners.com/bank/role-of-cci-in-regulated-sectors-overlapping-jurisdictions/.> Accessed on
10 May 2025.

12 | P a g e
enterprises, and geographical markets.44 As new markets grow and deepen, the sheer
magnitude of activity in competition law goes up. Second, competitive pressures are limited
in an unsophisticated market as there is a slow pace of creative destruction. As the economy
gains complexity, there is greater competitive pressure. When it becomes harder for firms to
make profits, there is a greater temptation to resort to anticompetitive practices of various
kinds. Parallelly, as the CCI’s advocacy efforts bear fruit and more people learn about the
importance of free and fair markets and the approach shifts from complaints to genuine
information, stakeholders will bring more cases of anticompetitive action to the CCI’s
attention. For these reasons, the salience of competition law and the magnitude of the CCI’s
activity, must go up.45

Therefore, we need to look forward to some new evolving models of operations creating a
balance of power between competition authorities and sectoral regulators. The determination
of the model primarily depends upon various factors: experience, practical application,
institutional culture, choices made by politicians and policymakers.46 To put this discussion
forward, the next section of this article reviews various models of operation along with
various practices adopted by countries internationally: exclusivity model, concurrency model,
etc. in order to identify, which model suits Indian Institutional and demographic framework
the best.

44
Levitt, T. (2014, August 1). The globalization of Markets. HARVARD BUSINESS REVIEW. Retrieved 10 May
2025, from <https://hbr.org/1983/05/the-globalization-of-markets.> Accessed on 10 May 2025.
45
Ministry of Corporate Affairs. (n.d.). Report of the Competition Law Review Committee., from
<https://www.ies.gov.in/pdfs/Report-Competition-CLRC.pdf.> Accessed on 10 May 2025.
46
Dabbah, M. M. (2011). The Relationship Between Competition Authorities and Sector Regulators. THE
CAMBRIDGE LAW JOURNAL, 70(1), 113–143.

13 | P a g e
 III. MODEL OF COOPERATION AND THE WAY FORWARD:

It should be noted at the outset that there is no perfect model based on exact science.
Consequently, it becomes very necessary to have a dynamic approach while determining the
model of operation. As we are currently, in the midst of a transition from depending solely on
competition enforcements to also adopting regulation, we are missing out on the “hybrid
approach” which could also be adopted, keeping in mind the institutional framework and
history of competition law in India. But it is impossible to adopt such approach before
comparing it with the pre-existing exclusivity model and concurrency model. Therefore, this
section of the article, tries to advocate the expansion of the competition enforcement by
adopting a participatory “Rule Making” approach47, correspondingly at the same time putting
forward some legal and economical arguments in derogation of the pre-existing models,
namely, Exclusivity model & Concurrency model of interface between competition and
sectoral regulations leading to age-old issue of jurisdictional overlaps.

A. The Fallbacks of Concurrency Model

Building an institutional framework by combining the goals and objectives of two bodies is a
very complex task to carry out. Internationally, there are wide variety of concurrency model
available for assistance, but the existence of ‘dilemma’ in choosing, which regulatory body to
be favoured in the concurrency model still persists. The doubt regarding favouring
competition enforcements or regulatory bodies widens the scope of implications of the
limitations of both bodies. As a result, the attraction towards adopting for concurrency model,
should always be looked in the light of the difficulties which it may give rise to. The
Concurrency model includes following limitations: (a) Jurisdictional overlap and duplication
of work; (b) Dominance of non-competitive consideration in the sectoral regulations; (c)
Differences in goals and objectives of both the regulations; and (d) lack of regulation on
organized cooperation. In the practical application of the model of concurrency, the regulator
may struggle in terms of prioritizing or even reconciling between the contrasting duties and
objectives laid down in their governing statutes. The simple and obvious fact that sectoral
regulations are not competition authorities should also be acknowledged. The efficiency and

47
Chopra, R. (2018). Competition and Consumer Protection in the 21st Century. ms, Washington, D.C. 20580.

14 | P a g e
legitimacy of the body under this model is also under the scrutiny because this model of
cooperation violates the legal doctrine of “separation of powers”.

Thus, the model of concurrency though successful in the UK, may not work in a developing
country like India where hierarchical institutional framework restricts the govt bodies and
regulators to cooperate with each other. Since, the functional/financial independence and
accountability of sectoral regulators in India is not possible because of political interests of
the policy makers it is very difficult to adopt the model of concurrency.48

B. The Way Forward: Expanding the competition Enforcement by “Rule Making”

Taking into the considerations, prior efforts made in this area for determining the “balance of
power” between Competition law and Sectoral Regulations, we might take a step back, and
try to device an alternative mechanism through which pro-competitive laws can operate in a
better way. This approach of expanding the competition enforcement, draws our attention
towards an idea of “mutual-influence” between regulation and competition enforcements.
The idea of mutual influence refers to evolving an expert rule making authority agency for
major sectors of the economy, for example (Telecommunications, Energy, Transport,
Information Technology, etc.) to guide Competition Commission of India to deal with issues
needing sophisticated understanding and dynamics. This would promote rapid use of new
ideas and developments in every sector to advance more clarity and certainty, like what
happened in the “post-Chicago case” 49
. And would exhaust the debate of jurisdictional
overlays between competition authorities and sectoral regulators because only the
Competition Commission of India under this mechanism will be entrusted to have jurisdiction
governed by Industry-specific competition rules provided by Rule Making (Expert Agency)
for every sector. These expert agencies consisting of economists, scholars of particular sector
and policymakers would assist the competition authority by formulating industry specific
competition rules. The practical application of this approach can be attributed to the Congress
in the US, where they also sought to create a structure that was both rigorous and vigorous,
where the law would develop not just through judicial courts but also through an expert
agency.

48
CUTS International, ‘Harmonising Regulatory Conflicts: Evolving a Cooperative Regime to Address
Conflicts Arising from Jurisdictional Overlaps between Competition and Sector Regulatory Authorities’ (Indian
Institute of Corporate Affairs 2012) 7
<http://oldwebsite.iica.in/images/Harmonising%20Regulatory%20Conflicts.pdf> accessed 12 May 2025.
49
Yoo, Christopher S., "The Post-Chicago Antitrust Revolution: A Retrospective" (2020). Faculty Scholarship at
PENN LAW. 2237. <https://scholarship.law.upenn.edu/faculty_scholarship/2237>Accessed on 12 May 2025.

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A number of commentators have also advocated the expansion of competition enforcement
through rulemaking. For example, Tim Wu advocates need of instituting more regulation in
the competition system,50 for example as “using industry-specific statutes, rulemakings, or
other tools of the regulatory state to achieve the traditional competition goals associated with
the antitrust laws.51 Similarly, the OECD,52 also proposed certain recommendations for
evolving coordination between different regulators, which suggested the agency to adoption
of more informed decisions on competition and regulatory issues.

This approach can be modalized through bringing in two strategic actions designed to
stimulate the competition enforcements: (1) Making certain industry specific competition
amendments in the governing sectorial statues to bring more industry specific competitional
clarity and certainty. This would reduce the burden on judicial bodies which is attributed
solely to the generalised character of competition act. (2) Establishing a Rule Making
(Expert-agency) in each sector.

This approach would maximize the advantages enjoyed by competition authorities and
sectoral regulators as it addresses the limitations of both. It would lead towards, evolving a
risk-based and principle-based regulations and most importantly, as the rules proposed for
adjudicating sector specific competition matter will be readily available in comparison to
legislation. It would reduce the litigation and enforcement cost; Reduce ambiguity around
what the law is,53 enhancing the predictability; Reduce opacity and certain undemocratic
features of the current approach, enhancing transpiration and participation.54

50
Tim Wu, Antitrust via Rulemaking: Competition Catalysts, COLORADO TECHNOLOGY LAW JOURNAL, Vol.16,
P. 33, 2017 (2017).
51
U.S. DEP’T OF JUSTICE, Division Update, Spring 2019 (Mar. 26, 2019),
https://www.justice.gov/atr/division-operations/division-update-spring-2019/cartels-beware.
52
Directorate for Financial and Enterprise Affairs COMPETITION COMMITTEE. (n.d.). Annual Report on
Competition Policy Developments in Spain (2017) - OECD. OECD. Retrieved May 11 ,2025, from
https://one.oecd.org/document/DAF/COMP/AR(2019)15/en/pdf.
53
567 U.S. 239, 253 (2012). S
54
Harry First & Spencer Weber Waller, Antitrust’ s Demographic Deficit, 81. FORDHAM L. REV. 2543 (2013)

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 IV. CONCLUSION

The aim of this Article was to analyse the paradox between sectoral regulations and the
competition authority in India in contemplation to evolve a model of operation to resolve the
regulation/competition dichotomy. The seemingly disruptive interface between the
competition authority and sectoral regulation is attributed to the contrasting legislative
mandates the two exerts to achieve somewhat, complimentary goals and objectives.

The article investigated the socialist structure of Indian economy responsible for proliferation
of sectoral regulators in the economy post 1990’s (evolution into unregulated economies). It
further scrutinized the interface between sector specific regulators and competition authority
in pursuance to analyse, how does sector-specific regulations circumscribe the scope of
competition law in Indian context? Descriptively, the article chooses “rule making” approach
as the best model to expand the enforcement of competition law in comparison to exclusivity
and concurrency model, as it stands out as very practical and pragmatic approach to
managing the interface between competition enforcement sectoral regulation. The article also
explained, no model is the best model in todays’ dynamic economic environment. Therefore,
the choice of model of operation needs to be sensitive to experience, practical application,
institutional culture, choices made by politicians and policymakers.

Normatively, the article subtlety brought forward that for any model of operation to work,
competition authorities and sector-specific regulators must conduct themselves in a
prospective and constructive manner showing flexibility when working together, and perhaps
have an accommodative approach towards one another, because the way they conduct each
other will have a decisive impact over ensuring the existence of public good, economic
efficiency and consumer welfare.

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