One of the main distinguishing features that separate anti-competitive behaviour from innovative marketing and fair competition is that most of these types of anti-competitive behaviour are considered illegal only if the company that commits the conduct is a dominant company, to the extent that its actions will have a significant influence on market behaviour. If the company exhibits such behaviour, it has a considerable market share, so that it is able to make out-of-the-way profits and evict small businesses from the sector, it is most likely considered illegal. Companies in agreements that control prices or divide markets so that everyone has a monopoly on a part of the market do not feel the usual competitive pressure to bring new products to market, improve quality and keep prices low. In the end, consumers will have to pay more for poor quality goods. Agreements on cartels and abuse of dominance are particularly damaging and are therefore subject to severe penalties for those caught. The trend towards convergence of the substantial doctrine of the cartel means that most jurisdictions now condemn agreements between competitors that set prices. But the same convergence means that the same jurisdictions have to deal with the problem of the existence of an agreement, especially in an oligopolistic industry where high prices, at least in theory, could be the result of oligopolistic interdependence. Do we condemn such interdependence? Are we not ignoring them and demanding an explicit agreement? Or is there a middle ground? This chapter examines how the United States and, to a lesser extent, the EU have addressed the problem of cartel management in the absence of strong evidence of an explicit agreement. The first possibility is to try to prove the existence of an explicit agreement by clues; a second is to relax the requirement for an explicit agreement somewhat. Efforts to find the perfect solution continue. While operating in India, parties are prohibited from entering into anti-competitive agreements. In general, agreements that have or are likely to have significant negative effects on competition (“AAEC”) are anti-competitive agreements.

These chords can be horizontal or vertical. However, the Competition Act 2002 (“Law”) recognizes intellectual property rights and, to facilitate their protection, allows reasonable restrictions imposed by their owners. Similarly, the law exempts agreements between exporters, as exports do not affect Indian markets. The Competition Commission of India (“ICC”) has been empowered to order any company or person to modify, terminate and not recontract an anti-competitive agreement and impose a penalty of up to 10% of the average turnover of the last three years.