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The Effect-Based Paradigm: Analysing Schott Glass in Light With Comparative EU Practice

Leave a Comment / Competition Law / CBCL

[By Priyal Jain and Aditi Saxena] The authors are students of Rajiv Gandhi National University of Law, Punjab INTRODUCTION Recently, the Hon’ble Supreme Court, in an appeal filed by CCI challenging the COMPAT’s decision, has exonerated Schott Glass India Pvt Ltd. (hereinafter, “Schott Glass”), the principal domestic manufacturer of neutral USP-I borosilicate glass tubing, from the allegation of abuse of dominant position. The ruling has led to an important development in the Indian Competition Law jurisprudence with respect to abuse of dominance under Section 4 of the Competition Act, 2002 (hereinafter, “Act”). It has made an important shift from form to effect-based approach in the assessment of abuse of dominance, a development that has long taken place in European jurisprudence. This blog delves into the nuances that the Supreme Court decisively reaffirmed with respect to the centrality of effects-based analysis in Indian abuse-of-dominance jurisprudence,underscoring that antitrust intervention under the Act must be premised on rigorous economic evidence of actual or likely competitive harm. Additionally, the authors have delineated the effect-based approach in its more evolved form in the EU and the key takeaways that can lead to a more dynamic approach to abuse of dominance in Indian jurisdiction. APPROACHING ABUSE: ANALYSING THE SUPREME COURT’S APPLICATION OF THE EFFECT BASED STANDARD While the judgment focused on a variety of aspects like volume-based rebates, functional rebates, margin squeeze, tying or bundling, procedural lapse, this analysis primarily focuses on the assessment of all the abovementioned aspects through the effect-based approach undertaken by the Supreme Court. While assessing the rebates provided by Schott Glass, the Hon’ble Court, drawing from the EU’s Article 102 (c) TFEU and British Airways case, examined the technical realities of borosilicate production and commercial justification of the rebates along with the evidence alluding to no foreclosure in the market, rather, an increase in production and imports from the competitors. Instead of relying on a formalistic approach, the Supreme Court scrutinised the margin squeeze allegation by applying the TeliaSonera test of an efficient competitor (“AEC”) and also observed the positive EBITDA, absence of foreclosure effect in the market before exonerating Schott Glass from the said allegation. The court examined the tying accusation by employing the conditions of the Microsoft Corp. case. It noted that although converters were not coerced to buy the two products together, there existed an objective justification in the form of manufacturing efficiency to offer a multi-product volume discount. While the NCLAT in Google LLC v. Competition Commission of India had deployed the effect-based test in assessing the abuse of dominance, the Supreme Court in the instant case has established the essentiality of the same in an inquiry under Section 4 of the Act. However, it is pertinent to note that while the Hon’ble Court has relied on actual evidence, inter alia, sales data and import data, it failed to adequately address how to assess the likely effects of any conduct. The court refrained from delineating a clear framework or any structured guidance for evaluating the potential anticompetitive effects of such conduct in the market, a significant omission considering that abuse of dominance requires a forward-looking economic assessment and not mere reliance on evidence based on historical data. A further intriguing detail of the judgment is that while the court holds that abuse of dominance is a practice that results in, or is likely to result in, an appreciable adverse effect on competition (“AAEC”), it omits to clarify the fact that section 4 does not explicitly mention AAEC. Although it is well within the jurisdiction of the Supreme Court to bring a new development in law, its failure to acknowledge the potential oversight in law, if one is indeed perceived, is concerning. In a country where the competition law is still in its very formative and evolving phase, the rulings of the Supreme Court hold huge significance in shaping the law. However, the amount of clarity brought by this judgment is still in the fog. THE EU’S EFFECTS-BASED TRAJECTORY: A JURISPRUDENTIAL OVERVIEW Since the adoption of the 2008 Guidance Paper on exclusionary abuse of dominance, European case law has developed and deflected away from its prior formalistic approach and the per se prohibitions, whereby the legal nature or form of a conduct seemed to matter more than its effects, to a more economically grounded effects-based approach. For instance, in the Hoffman-La Roche judgment, the CJEU ruled that exclusive dealing and conditional rebates were per se illegal. In other words, whether these conducts produced any anticompetitive actual or potential effects and whether such effects were potentially compensated by efficiencies it created was immaterial. The Guidance Paper stated that the European Commission (hereinafter “EC”) would only intervene against exclusionary conduct by dominant firms if, on the basis of cogent and probative evidence, the allegedly abusive conduct is likely to lead to foreclosure. Since the adoption of the Guidance Paper, economic analysis has played a greater role in Article 102 TFEU cases, as this approach takes into account the conduct of the entity in line with analysing the market dynamics and the mainstream economic reasoning. For instance, in the case of Intel, the Grand Chamber of the Court of Justice indicated that in order to establish the capacity of exclusivity rebates to restrict competition, the Commission must analyse a set of relevant factors, with regard to the specific circumstances of each case. In a similar vein, in Google Shopping, the General Court broached that, to find an abuse under Article 102 TFEU, the Commission has to take into account “all the relevant circumstances”, including the arguments made by the dominant undertaking disputing the conduct’s capability to have anti-competitive effects. Further, as part of the 2023 amendment to the Guidance Paper, the EC highlighted the effects-based approach to abuse of dominance centred around the standard of “potential effects”, which requires more than hypothetical effects, also excluding the need to prove the existence of actual effects. In line with the principle that EC does not want the implementation of this approach to

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Tenders in Limbo: The High Cost of Judicial Outsourcing

[ByVidhanshu Tyagi] The author is a student of National Forensic Sciences University, Gandhinagar Introduction The bedrock of tender jurisprudence in India is the principle of judicial restraint. Courts have steered clear of functioning as an appellate authority over administrative decisions, specifically in contractual matters. The rationale behind this is clear: the executive being the author of the tender is the master of the process, and judicial interference should be confined to the narrow corridors of mala fides, arbitrariness, irrationality, or a palpable impact on public interest. However, a recent trend emerging from the High Courts, particularly in cases alleging “technical glitches” in e-tendering portals, threatens to erode this well-settled principle. The appointment of external expert committees, as seen in the recent orders of the Delhi High Court in Karix Mobile Private Limited v. Union of India & Ors. (Karix Mobile) and Anandam Minerals Private Limited v. Union of India & Ors. (Anandam Minerals), marks a significant departure from established precedent and risks entangling tender processes in protracted, expert-led investigations, thereby defeating the very objective of timely and efficient public tenders. The Established Law: A High Wall of Restraint The Supreme Court and various High Courts have built a formidable body of case law that strictly circumscribes the scope of judicial review in tender matters. It is settled law that the court should not interfere in tender matters except in the limited exceptions laid down by the Supreme Court. The foundational principles established in Tata Cellular v. Union of India is that the court’s role in judicial review is limited to checking for illegality, irrationality (in the Wednesbury sense), and procedural impropriety. Further, the Delhi High Court in Jindal Steel & Power Ltd. v. Union of India (Jindal Steel), relying on the Supreme Court’s decision in Jagdish Mandal v. State of Orissa, reiterated the triple test that constitutes these exceptions for interference: Is the decision-making process mala fide or intended to favour someone? Is the decision so arbitrary or irrational that no responsible authority could have reached it? Does the decision harm the public interest? If the answers are in the negative, interference is impermissible. This principle was also upheld by the Supreme Court in MHADA v. Shapoorji Pallonji & Co. (P) Ltd. (Shapoorji Pallonji), wherein it overturned the High Court’s decision that had allowed a bidder to participate despite a failed submission. The Supreme Court found that since other bidders had successfully submitted their bids, there was no evidence of a systemic glitch, and granting a “second opportunity” was improper. Furthermore, the Supreme Court has issued a direct procedural caution to High Courts, advising that they must be “extremely careful and circumspect” when entertaining such petitions, as granting stays “may seriously impede the execution of the projects of public importance.” This line of reasoning became the standard for adjudicating “technical glitch” claims. Courts adopted a pragmatic and evidence-based approach. The primary question was whether the glitch was at the bidder’s end or a systemic failure of the e-procurement portal. The determinative factor, as established in Jindal Steel (supra) and the Orissa High Court’s ruling in Mythri Infrastructure & Mining India (P) Ltd. v. State of Odisha (Mythri Infrastructure), was whether other bidders could place bids during the alleged period of the glitch. If the server logs showed successful concurrent bidding activity, the presumption was heavily against the petitioner. The burden of proof to demonstrate a server-side failure, rested squarely and heavily on the aggrieved bidder. This was a high threshold that was often not met, which in turn led to the dismissal of such petitions, sometimes with costs, as evidenced by the decisions in The New Approach: Outsourcing Adjudication to Experts The recent orders in Karix Mobile and Anandam Minerals signal a notable deviation from this established path. In Karix Mobile, the Delhi High Court, faced with an allegation of a technical glitch on the Government e-Marketplace (GeM) portal, directed the Director of the Indian Institute of Technology (IIT), Delhi, to nominate an Expert Committee to investigate the issue. The court deferred its own judgment pending the submission of a technical report. Similarly, in Anandam Minerals, a bidder claimed its screen went “blank/white” for 2-3 minutes, preventing it from placing a higher bid. The portal operator, MSTC, categorically refuted the claim, stating that no other bidder, including those in other simultaneous auctions, had reported any issue. Despite this strong prima facie evidence aligning with the principles laid down in Jindal Steel and Mythri Infrastructure, the Court observed that the matter was “highly technical in nature” and could not be “ascertained by the Court.” Consequently, it directed IIT Delhi to form an Expert Committee to examine the alleged glitch. This deviation is not merely a departure from precedent but also overlooks a fundamental jurisdictional principle, as such disputed questions of fact cannot, and should not, be raised in writ courts. A writ petition under Article 226 is a summary proceeding designed to address patent illegality, not to conduct a roving inquiry into complex factual disputes. The very fact that a court deems an issue “cannot be ascertained” based on affidavits is a strong indicator that the matter is not amenable to writ jurisdiction. Such fact-intensive disputes are not the proper subject matter for writ jurisdiction. If at all any issue exists, the appropriate remedy is a civil suit, where the court can decide the matter based on a full trial with documentary evidence, examination-in-chief, and cross-examination. This aligns with the Supreme Court’s long-standing position, as affirmed in both, Jagdish Mandal and By entertaining these disputes, writ courts are venturing into an evidentiary exercise for which they are not designed, effectively transforming a summary remedy into a fact-finding mission. This approach, sidestepping the established jurisprudence, raises several critical questions: Undermining the Primary Expert: Aren’t the portal operators, be it NIC, MSTC, or GeM, the primary technical experts? Their affidavits, server logs, and technical reports have historically been the primary evidence upon which courts have relied. Appointing an external body like IIT implies that the evidence from the portal operator is insufficient, thereby

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Lock-in by Design: The Case for Regulating Google’s Adtech Stack in India

Leave a Comment / Competition Law / CBCL

[By Vashmath Potluri & Shubhranshu] The authors are students of NALSAR University of Law, Hyderabad. Introduction In August 2025, the Competition Commission of India (“CCI”) launched a consolidated investigation into Google’s conduct in the online display advertising market, acting on complaints by the Alliance of Digital India Foundation (“ADIF”). At issue is Google’s vertical integration across the advertising technology (“Adtech”) stack: it operates the Google Ad Manager (“GAM”), the leading ad exchange (“AdX”), and Display & Video 360 (“DV360”). By simultaneously controlling the infrastructure that runs auctions while also bidding in them, Google occupies a conflicted position that facilitates preferential treatment of its own services. The stakes here are considerable because India’s digital advertising sector has crossed the 1 lakh crore mark with digital media accounting for approximately 46 percent of total ad spend. Within this landscape, Google’s Indian advertising operations reported gross revenues exceeding 31,000 crore in FY 2023–24. Rather than leveraging overt price controls or contractual restrictions, Google’s structural foreclosure stems from engineered defaults, informational gaps and meticulously designed auction mechanics that skew outcomes in its favor. This paper proceeds in two parts. First, it argues that informational asymmetry across the three stages of auction constitutes abuse of dominance under Sections 4(2)(c) & (e) of the Competition Act, 2002 (“Act”). Second, it proposes a three pronged regulatory framework drawing inspiration from European Union Digital Markets Act (“DMA”) and Australian Competition and Consumer Commission (“ACCC”). Allegations Framed as Auction-Stage Foreclosure The complaints before the CCI do not view Google’s conduct as isolated episodes of misconduct but as part of a continuous foreclosure strategy spanning the entire digital advertising stack. This stack is organised around three flagship Google services that occupy each critical layer of the chain. At the publisher end, GAM functions as the ad server through which publishers manage and sell their inventory. AdX operates as the marketplace where that inventory is auctioned in real time to potential buyers. On the advertiser side, DV360 serves as Google’s demand-side platform (“DSP”), enabling advertisers and agencies to place bids across exchanges. Functionally, therefore, GAM connects publishers, DV360 connects advertisers, and AdX sits in between as the auction mechanism. According to ADIF, Google’s integration across these layers allows it to structure auctions in ways that systematically privilege its own services. The tying of GAM to AdX steers publishers using Google’s ad server toward Google’s exchange as the default channel for monetisation. On the demand side, YouTube inventory is made available exclusively through DV360, thereby excluding rival DSPs from premium video placements and further entrenching advertiser reliance on Google’s ecosystem. Auction design features such as “dynamic allocation” and “last look” strengthen this advantage by giving Google’s buying tools preferential opportunities to outbid rivals. To complete the cycle, Google grants its own services access to more detailed reporting data than it makes available to competing intermediaries, thereby reinforcing an informational edge. The following sections set out how these practices operate across the life cycle of an ad auction. Pre-Auction Foreclosure: Tying and Inventory Lock-In DoubleClick for Publishers (“DFP”), now merged into GAM, was Google’s publisher ad server. A publisher ad server helps website and app owners decide which ads appear on their platforms. It receives requests for ad space, selects which advertisers or exchanges can bid, and directs the impressions into an auction. For publishers using DFP/GAM, routing ad requests through AdX became the default, limiting competing exchanges from accessing the full set of impressions. This meant that foreclosure began even before any bids were placed, restricting rivals at the very first stage where bid requests were formed and giving Google an advantage throughout the adtech ecosystem. A similar foreclosure effect occurs with YouTube, India’s largest video advertising platform. Advertisers can only access YouTube inventory through DV360 platform. By requiring the use of DV360, Google effectively prevents rival DSP’s from competing for this critical ad inventory. As a result, both publishers and advertisers are channeled into Google’s ecosystem even before the auction begins, reducing participation opportunities for independent intermediaries and consolidating Google’s control over the digital advertising market. Auction-Stage Foreclosure: Manipulated Auction Mechanics Once bids are received, foreclosure shifts from access restrictions to the mechanics of the auction itself. Because of its structural integration, Google is able to set the rules governing how bids are processed allowing its exchange to operate under terms unavailable to rivals. ADIF highlights practices such as “dynamic allocation” and “last look” as evidence of this imbalance. Under dynamic allocation, AdX is allegedly permitted to adjust its bid in real time against the highest competing offer, ensuring victory without overpayment. The last look feature further strengthens this advantage granting AdX the option to see the highest rival bid before deciding whether to match or exceed it. On the other hand, rivals operate in informational asymmetry compelled to bid without visibility into the competition. The imbalance is reinforced by Google’s refusal to fully support “header bidding”, a publisher-led innovation designed to enable fairer simultaneous auctions across multiple exchanges. Instead, competing exchanges are relegated to sequential or delayed pathways that are inherently less competitive due to latency and technical disadvantages. At this stage, Google is not merely another participant in the auction but also the referee, able to tilt the rules in ways no independent platform can mirror. Post-Auction Foreclosure: Asymmetry of Disclosure The foreclosure does not end with the conclusion of the auction but extends to the reporting and feedback stage where transparency is essential for advertisers and DSP’s to refine their strategies. Google’s DV360 receives highly granular near real-time data including log-level reporting that allows advertisers to optimise future bids with precision. Rival DSPs, however, are relegated to aggregate or delayed reports stripped of critical identifiers. This asymmetry of disclosure compounds the disadvantages faced by non-Google platforms. Without access to detailed feedback, rivals cannot recalibrate effectively, which leads to systematically weaker performance in subsequent auctions. Publishers observing this disparity are nudged to rely increasingly on Google’s demand further entrenching its dominance. Over time, the presence of independent

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Impact of Sebi’s Proposed Dual C Suite Model for Miis

Leave a Comment / Capital Markets and Securities Law / CBCL

[By Kushagra Prasad] The author is a student of Gujarat National Law University Introduction: Governance Gaps in MIIs Market infrastructure Institutions of India, including the stock exchange, clearing corporation, and depositories, have come under increasing scrutiny for their governance structures. Keeping in mind their strategic positioning within capital markets and possible conflict of interest, the Security Exchange Board of India (SEBI) issued a consultation paper on 24 June 2025 that required the appointment of two distinct Managing Directors (MD) level professionals: one to manage core business and trading, and another for risk, compliance and investor grievance-related functions. The additional officer will be an independent board member, standing equal to current MDs, and will report quarterly to the MII board and SEBI. This change addresses long-standing issues that MIIs have had, such as too much power vested in one MD-led system, and has reduced oversight of critical compliance and risk activities. SEBI seeks to strengthen internal control, minimize conflict of interest, and ensure board-level attention to core regulatory activities by splitting up senior leadership. Can introducing the dual C-suite model enhance and align India’s MIIs with global standards? This blog piece analyses whether such a change can help increase institutional integrity and investor trust, or run the risk of operational difficulties and boardroom disharmony. Policy Genesis and SEBI’s Justification The proposal for SEBI’s dual C-Suite model for MIIs is far from arbitrary. It emerges as a conscious response to a trio of pressing governance challenges. Firstly, the rising complexity in derivatives markets means that existing single-headed executive structures struggle to maintain adequate risk oversight. With the growing sophistication in derivative instruments, MIIs need specialized executive roles to parallel manage trading, counterparty risks, compliances, and technology. Secondly, the failure of investor protection, such as misreporting, privileged trading access, and poor internal controls, has heightened the conflict-of-interest risk inherent in vested executive arrangements. The consultation paper suggests that segregated leadership should be used to make sure that risk and compliance are not secondary to commercial objectives. Thirdly, risk oversight failures have flagged that accountability under a single MD/DEO often becomes opaque. SEBI analysis concludes that operational priorities can overshadow critical risk posture without bifurcation. These core concerns are reflected in the consultation paper: The regulator directs quarterly meetings barring the MD/CEO, allowing autonomous board-level executives to assess risk and governance concerns without commercial bias. It demands appointment of independent board-level executive directors handling core verticals, one for operations/trading and another for risk/compliance, each with voting rights at the board level and equal standing to the MD. It also institutes a direct reporting channel for SEBI, with the new Executive Directors (Eds) submitting quarterly reports to the board and the regulator. They will meet SEBI’s regulatory/risk committee separately, ensuring transparency and eliminating bottlenecks. By advocating the separation of faces of governance, operational leadership at one end, risk/compliance leadership at the other, autonomous board oversight, and quarterly regulatory interaction, SEBI seeks to eliminate loopholes within internal checks and accountability. This disciplined approach aligns MIIs with worldwide checks & balances practices: independent directors empowered, separation of essential responsibilities, and emphasis on regulatory openness. The outcome is a regulatory structure set to maintain investor confidence, raise risk resilience, and avoid conflicts, without sacrificing the growth and innovation of India’s increasingly complex financial markets. Comparative Governance Lens The MIIs reflect an increasing prioritization of independence and risk mitigation globally, particularly within C-suite leadership roles. The UK’s ring-fencing model stands as a classic example. Since 2019, central UK banks have been required to ring-fence all core retail banking activities from riskier investment banking operations. This architecture demands legal and operational separation and imposes ring-fenced governance structures empowered to act independently, ensuring safeguard of retail banking against plague from the group’s wider exposures. Governance is operationalized through differentiated management teams, board committees, and, crucially, distinct Chief Risk Officer (CRO) roles assigned with autonomous oversight of ring-fenced entities. The CRO is protected from any undue influence by other business segments, reflecting the country’s commitment to functional risk management through structural independence.Similarly, the US markets are subject to tightly controlled dual regulation by federal and state governments, with exchanges being multi-layered and supervised by the Securities and Exchange Commission (SEC) and other organizations. This divided regulatory environment ensures that executive risk functions, such as CROs, are subject to internal checks and external supervision, thus dispersing concentrated power and making the market participants accountable. US exchanges should be required to identify compliance and risk roles with direct reporting lines to independent board committees, further enhancing transparency and responsible risk-taking. Turning to the Indian baseline, SEBI’s existing governance climate already reflects a degree of functional segregation, for instance, by excluding Managing Directors from audit committee chairs. Still, the consultation paper underscores that current practices vest overarching authority in the MD, potentially diluting operational, risk, or compliance oversight. The proposed dual C‑suite mechanism strengthens this segregation by mandating that each ED matches the MD in stature, reports directly to the governing board and SEBI, and is prohibited from holding external board positions beyond narrow exceptions. Expected Benefits v. Practical Challenges The model can potentially change MIIs like stock exchanges, clearing corporations, and depositories. On the positive side, it strengthens in-house checks and inculcates a more focused attention to risk. By keeping one ED to oversee essential operations (trading, clearing, settlement) and another to lead regulatory, compliance, risk management, investor grievance, the structure builds redundancy into the leadership pyramid, bolstering oversight in areas prone to systemic failure. In addition, SEBI’s framework encourages more transparent governance and balanced budgets. EDs will be required to report to Sebi and the governing board every three months resulting in greater board-channel confidence and higher investor trust. With this, the perceptions of investors are likely to improve. MIIs will appear less profit‑motivated and more utility‑led, increasing retail and institutional credibility. This also pre-empts frequent SEBI notices cautioning against over-commercializing MIIs, pointing to increasing dividends and profit margins, by reasserting their public‑utility purpose. That said, ambition could run counter to implementation.

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From Barriers to Bridges: Sebi’s Investment Advisory Modernization Initiative

Leave a Comment / Capital Markets and Securities Law / CBCL

[By Anikait Chawla and Chinmaya Saraswat] The authors are students of Gujarat National Law University On 7 August 2025, the Securities and Exchange Board of India released a consultation paper called, “Proposals for Ease of Doing Business for Investment Advisers and Research Analysts” (the Paper). The Paper aims to lower procedural barriers for advisers and analysts while keeping investor protections in place. It builds on changes from December 2024 that gave advisers more fee flexibility and cleared up onboarding steps. The Paper addresses six persistent market concerns: the limited ability to share past performance, unclear rules on second-opinion services, short corporatization timelines, narrow qualification criteria, and repetitive documentary checks. SEBI tied these easing measures to safeguards such as certification, disclaimers and time limits. The regulator wants to make life easier for advisers while keeping verification where it matters. 1.Regulatory backdrop and principal proposals The Investment Advisers Regulations, 2013 (IA) and the Research Analysts Regulations, 2014 (RA) set rules for who may advise, how research should be published, and what disclosures advisers must make. Those rules helped professionalise a market that had relied on informal practice. As advisory work evolved, the rules showed strain. Firms and solo advisers report repeated documentary checks, academic thresholds that block experienced practitioners, and disruption when individuals convert to a corporate form. Small advisers feel these burdens most because they lack in-house compliance teams. SEBI responds with a significant change aimed at broadening eligibility. Any graduate could register if they pass the relevant NISM exam. That keeps a baseline of competence while allowing more professionals to enter the market. The Paper would permit one-to-one sharing of certified past-performance data when a prospective client requests it. Advisers may present certified results to interested clients, with mandatory disclaimers and a time-limited allowance. The approach lets advisers show a genuine track record without enabling mass-market promotion of unverified returns. The Paper also formalises second-opinion services. Advisers often give informal second opinions on products distributed by others. SEBI would let advisers charge for those services within capped arrangements and with clear disclosure. The Paper references a 2.5 percent ceiling as a guardrail. It also proposes annual consent for ongoing fee arrangements so clients stay informed about layered charges. On corporatization, SEBI proposes a longer transition window and limited client onboarding during conversion. The current short period often forces advisers to pause or alter services. Extending the window, while requiring continued professional-liability cover and client notice, aims to smooth the process without reducing accountability. Additionally, the Paper aims to prune redundant documentary checks. Repeated proofs of address, multiple credit reports and duplicate tax submissions add time and cost without improving oversight. SEBI suggests replacing many routine checks with digital verification, sworn declarations and targeted spot checks. That approach redirects supervisory effort toward risks that matter for investors. Taken together, these measures show SEBI trying to reduce admin friction while keeping guardrails. Certification, templates and sunset clauses serve as those guardrails. The outcome depends on how precise and operable the implementing rules become. 2.Implementation challenges and standardisation requirements The reforms will succeed only if SEBI provides clear technical guidance and reasonable timelines, beginning with standardisation, since past-performance disclosures help clients only when advisers calculate and report returns uniformly.. SEBI should mandate a template that shows one-, three- and five-year gross returns, the corresponding net returns after fees, the benchmark used for each period, start and end dates, and a short note on the calculation method. The template should explain how to treat cash flows and whether to use time-weighted or money-weighted returns. It should also describe how to present multi-asset strategies. Without that clarity, numbers will be hard to compare and easy to manipulate. Verification should remain proportionate, and while chartered-accountant certification provides a strong safeguard, its costs weigh most heavily on small advisers. . SEBI should provide tiered options wherein larger firms can use full certification, mid-sized firms can rely on accredited third-party verifiers or audited internal reports and the small advisers can face random audits or accept higher liability if they self-certify. These alternatives keep oversight while avoiding a one-size-fits-all burden. Record-keeping and consent require fundamental digital systems. To track consent renewals, provide client-specific performance, and maintain auditable records, advisers will require secure solutions. SEBI ought to establish minimal technical requirements and permit gradual adherence. In order to prevent smaller firms from falling behind, the regulator can also promote open-source toolkits and low-cost vendors. Supervisory inspections will be sped up and conflicts will be decreased with the explicit guidelines on encryption, retention periods, and access limits. Digital verification can reduce documentation without compromising oversight. By connecting checks to trustworthy databases like PAN and verified tax records, SEBI can implement a verify-once paradigm. This lessens the need for duplicate checks, but it also necessitates privacy protections, backup plans in case of system failures, and a clear understanding of who is responsible for automated checks that go wrong. Efficiency and safety would be balanced by a hybrid architecture that automates regular inspections and saves manual review for outliers. The chartered-accountant requirement raises timing and cost questions such as who bears the charge and when must certification occur? SEBI could allow phased certification, for example a short self-certification period followed by formal attestation within a defined window, or it could permit accredited data providers to give standard attestations. Both options would maintain verification while easing the burden on small firms. Surveillance and enforcement must match a lighter prescriptive approach. A disclosure-led model needs better detection tools such as sample audits, anomaly detection and proportionate penalties that deter misuse. SEBI should build risk-scoring systems that flag outliers and support those systems with periodic manual checks. Targeted enforcement will keep the regime credible without reverting to blanket paperwork requirements. Finally, continuing competence matters. NISM exams can remain the baseline, but advisers should complete modest annual training and face occasional competency checks. Regular education and random assessments will keep standards current and reduce the risk of persistent low-quality advice. These measures, precise templates, tiered verification,

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Sebi Rewrites Startup Playbook: Esops, Convertible Exits, Angel Funds

Leave a Comment / Capital Markets and Securities Law / CBCL

[By Ayushika Sinha] The author is a student of Symbiosis Law School, Pune. Introduction India’s IPO market in 2025 has shown remarkable resilience despite global uncertainties, with 108 IPO deals raising $4.6 billion in the first half of the year and a surge expected in the second half. A key factor is the trend of reverse flipping where startups are redomiciling their holding companies from overseas jurisdictions back to India. The Securities and Exchange Board of India (SEBI) held its 210th board meeting on 18 June 2025, following the public consultation undertaken in March 2025 introduced changes to simplify the IPO path in India’s maturing capital markets. This article examines SEBI’s recent regulatory overhaul to accelerate startup listings and ease capital flows. It focuses on three areas, including ESOP retention for founders, OFS eligibility for converted securities and accreditation under the AIF regime. While the reforms strengthen India’s position as a global innovation hub, the article critically examines both the opportunities and challenges it poses. Catalyzing Innovation: SEBI’s Bold Steps Firstly, SEBI approved a proposal for founders to retain Employee Stock Options (“ESOPs”) even after being designated as promoters and the company becoming a listed entity. It addressed the ambiguity of ‘one year look back period’ surrounding the proposed amendment on March 20, 2025, clarifying that now for retaining ESOPs must be granted at least one year prior to the filing of Draft Red Herring Prospectus (“DRHP”). Secondly, it has clarified regulation regarding investors holding Compulsorily Convertible Securities (“CCS”) under an approved scheme. According to previous guidelines such investors were subject to wait for at least a year following the IPO before selling their equity in the OFS. With the revised norms, SEBI has now permitted equity shares arising from converted CCS to be included in the OFS. Additionally, certain non-promoters (AIFs, FV, insurance companies, etc) can contribute converted shares towards the Minimum Promoter Contribution (“MPC”). Thirdly, SEBI mandated accreditation of all investors in Angel Funds without the requirement of a minimum investment threshold and will be conducted by SEBI-recognized agencies based on their financial strength and risk appetite. Under the new framework, an investor must meet one criterion: annual income exceeding ₹2 crore, annual income above ₹1 crore and a net worth exceeding ₹5 crore (including at least ₹2.5 crore in financial assets), or a net worth exceeding ₹7.5 crore (including at least ₹3.75 crore in financial assets), replacing the earlier qualification based on net tangible assets of ₹2 crore, experience-based eligibility and a minimum ₹25 lakh investment. Lastly, Accredited investors (AIs) will be treated as “Qualified Institutional Buyers” (QIBs) solely for investments in angel funds pursuant to consultation paper issued on February 21, 2025. This circumvents the 200-investor cap imposed under Section 42(2) of the Companies Act, 2013. Decoding the Reforms This development has been welcomed across the startup ecosystem as it resolves regulatory hurdles ensuring that provision including amendments allowing startup founders to retain ESOP post-IPO under the SEBI (Share Based Employee Benefits and Sweat Equity) Regulations, 2021, exemptions for equity converted from CCS from open offer requirement under Regulation 10(1)(d)(ii) of the SEBI Takeover Regulations and facilitation of accreditation of investors for participation under the SEBI (Alternative Investment Funds) Regulations, 2012 to incentivize long-term commitment rather than short-term structuring From a market standpoint, the reform will accelerate the IPO pipeline by making the public listing process more founder and investor friendly and reducing key deterrents such as ESOP forfeitures, compliance of heavy cap tables, delayed exits due to OFS and CCS restrictions and accredition hurdles for early investors for domestic IPO for high growth startups. The regulatory shift modernizes capital markets and attracts more startups to Indian exchanges in the current increase of volume of startups preparing for IPOs in India, especially companies like PhonePe, Zepto and Pine Labs.. ESOP Retention: Previously, SEBI listing rules made no distinction between traditional promoters and startup founders barring both from holding ESOPs once made public. Under Rule 12 of the Companies (Share Capital and Debenture) Rules, 2014, and Regulation 2(1)(i) of SEBI (Shared Based Employee Benefits and Sweat Equity) Regulations, 2021 promoters are not considered employees and thus cannot receive ESOPs, except in the case of startups within 10 years of incorporation. However, under Section 62(1)(b) of the Companies Act, 2013 and ICDR norms, founders are reclassified as promoters upon DRHP filing, As promoters they are no longer considered employees making them ineligible to hold ESOPs creating confusion and forcing them to forfeit ESOPs before an IPO.. This regulatory conflict hindered founders of startups because they often earned lower salaries depending upon ESOPs after equity dilution. This would happen across multiple fundraising rounds, especially in tech-driven startups. This forced many to rework their cap tables ahead of IPO just to maintain eligibility increasing complexity and uncertainty for deferred compensation. The recent approval aims to protect legitimate remuneration preventing regulatory misuse. The change enables founders to maintain their ESOPs post-listing aligning their incentives with the long-term performance of the company and remaining committed post-IPO. Although through new rules existing ESOPs can be retained, there are still no provisions for granting ESOPs post-IPO. Such limitation discourages long term incentives to promoters resulting in further dilution of their ownership with each new issuance. Approval of fresh ESOPs grants after listing would therefore provide greater protection and incentive for founders. Furthermore, critics also argue from a corporate governance standpoint that this can lead to double dipping wherein promoters already benefit from control, voting rights, Dual-class shares and often sweat equity (Section 54 of the Companies Act, 2013). This change will allow them to retain from employee-focused ESOPs creating conflict of interest. As it will enable promoters to extract disproportionate wealth at the expense of minority shareholders and prioritizing personal gains over company performance. For example, ESOPs could allow promoters profit from stock price appreciation driven by their strategic decisions along with their existing control potentially leading to self-benefitting actions such as inflating valuations or delaying exits to maximize ESOP gains. These may

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From Offshore Shadows to Onshore Spotlight: Decoding RBI’s 2025 ETP Playbook

Leave a Comment / Capital Markets and Securities Law / CBCL

[By Ayushman Shrivastava] The author is a student of Hidayatullah National Law University (HNLU), Raipur Introduction In July 2025, the Reserve Bank of India (“RBI”) issued its Master Direction – Reserve Bank of India (Electronic Trading Platforms) Directions, 2025 (“2025 Master Directions”), replacing the 2018 framework and the earlier 2024 draft. At its heart, this latest framework signals a decisive pivot: steering ETP activity firmly onshore. The RBI’s rationale is twofold. First, by bringing more trading within domestic regulation, it seeks to enhance transparency, prevent market abuse and strengthen risk controls—goals first signalled in its 2017 Statement on Developmental and Regulatory Policies. Some of the key procedural refinements include scrapping the two-stage in principle approval (a six‑to‑twelve‑month preliminary hurdle) and shifting applications to the RBI’s PRAVAAH portal. Yet beneath this aim for efficiency lies a more stringent regime at its core. Banks and primary dealers enjoy an exemption but still remain subject to the RBI’s discretionary mandates. While the regulator’s Alert List has expanded, due diligence has been strengthened through cross-agency information-sharing, and selective licensing is now established as a “will” rather than a “may”. That is to say, where previous drafts implied the RBI would be at liberty to exercise discretion in determining who would be authorized to carry on ETPs, the 2025 Master Directions leave no doubt that the RBI will be selective. Code, Compliance, and Control: RBI’s Stepwise Redesign of ETP Norms (2017–2025) India’s journey to regulate Electronic Trading Platforms (ETPs) is not just a chronological evolution, but also a systematic tightening of regulatory precision and technological scrutiny.. Its origin lies in RBI’s 2017 Statement on Developmental and Regulatory Policies, where it identified the necessity for a strong ETP framework—designed to promote transparency, prevent settlement risk and contain market manipulation. This was followed by the Electronic Trading Platforms (Reserve Bank) Directions, 2018, which further categorised ETPs as any electronic system (other than recognised stock exchanges) to carry out transactions in “eligible instruments” such as government securities, money market instruments and forex derivatives. The 2018 guidelines mandated ETP operators to have strong audit trail mechanisms, ensure end-to-end encryption, achieve uptime and latency standards and keep data locally. However, partial exemptions were chiselled out for scheduled commercial banks, which were exempted from similar eligibility criteria. In response to the emergence of new grey zones – especially those involving offshore operators and algorithmic trading – the 2024 Draft Directions were introduced by the Central Bank. Furthermore, these directions also marked a departure from old practices. They prescribed model risk management practices, pre- and post-trade measures and even mandatory FATF-country integration for offshore ETPs. Quarterly detailed disclosures were also required, which included spikes in latency, market abuse and cyber-attacks. The recent 2025 Master Directions, however, go further, not through rule volume, but precision, emphasising targeted controls over broad prescriptions.The residency clause has now been removed, and it has also subtly shifted the definition of “entity” to include anyone, anywhere. Algorithmic trading is now subject to specific control layers: message throttling, price collars, execution slippage analysis and audit logs. The requirements of information security are no less strict-compulsory CISA or CERT-In empanelled IT audit, BC-DR drills, real-time SIEM logging and role-based access governance are now a necessity. Most importantly, perhaps, RBI now has the authority to tap into the intelligence of any Indian regulator, SEBI, FIU, or the Ministry of Corporate Affairs, as the case may be. This sneaky insertion of cross-regulatory due diligence reflects a regulatory environment that is no longer content with surface-level compliance-based regulation, but one that is based on systemic control and traceability. Digitising Control: RBI’s Authorisation Framework Enters a New Era The 2025 Master Directions are a paradigm shift in the manner in which the Reserve Bank of India (RBI) exercises its gatekeeping functions over Electronic Trading Platforms (ETPs), namely by digitising its procedures and by tightening its discretionary thresholds. On one hand, the administrative streamlining is being presented positively on the surface; on the other hand, the regulatory position is more discriminatory and control-oriented. Among the most important procedural innovations, it is worth noting the shift of the entire authorisation process to the PRAVAAH portal. Unlike the traditional manual filing system mandated under the 2018 guidelines and reiterated in the 2024 Draft Directions, PRAVAAH enables streamlined processing through real-time monitoring, automated data entry, and document standardisation standardised documentation. As a matter of commercial law, this reduces procedural opacity, while formalising the way RBI gathers data and audit trails. This gives the regulator systematic visibility into applicant behaviour and compliance preparedness. Just as important is the elimination of the “in-principle” approval process, which under the 2024 Draft was a soft filter with a six-month shelf life. The 2025 Directions subsume the two-step model into one full-fledged application. Although this might eliminate procedural exhaustion, it also requires the institutional world to be fully ready from the beginning. Significantly, the RBI has changed its stance from permissive to selective. The text of Section 9(b) of the 2025 Directions is that RBI “will be selective” in granting ETP authorisations, abandoning the discretionary “may” of the previous draft. This transition from optional discretion to mandatory selectivity has profound commercial implications. Legal entities including entities with pre-existing foreign approvals are now required to prove capital adequacy, operating resilience and strong systems of compliance attuned to Indian legal standards. In effect, RBI’s digitalisation drive is not merely administrative, but also structural. Authorisation is no longer just a compliance formality; it is a threshold test for market entry, tightly guarded by centralised, data-driven discretion. Jurisdictional Retrenchment: Phasing Out Offshore ETPs and Redrawing Boundaries One of the major policy changes that is evident in the 2025 Master Directions is the explicit removal of the extensive offshore ETP system proposed in the 2024 Draft Directions. The draft proposed a systematic form of regulatory regime on offshore platforms, which included incorporation in a jurisdiction identified by FATF, individual registration by RBI and prohibition on rupee derivatives trading. It also comprised the requirement of continuous monitoring, reporting

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Prohibition as Policy: Corporate Fault-Lines in the Online Gaming Bill, 2025

Leave a Comment / Contemporary Issues / CBCL

[By Sahil Singh and Shivanshu Shivam] The authors are students of Chanakya National Law University Introduction The Online Gaming Bill 2025 is a significant change of approach in moving away from a supervisory approach toward a statutory one, where prohibition is the new normal. This Bill introduces, on the one hand, a promotion of the e-sports and social-gaming activities under Sections 3 and 4, whereas it promotes, on the other hand, a ban on online real-money gaming under Section 5, supported by the additional prohibition on advertising under Section 6 and fund-transfer prohibition under Section 7. This paradigm views enforcement not as a question of control over a sector but as the destruction of infrastructural access by banks and payments intermediaries, as well as app stores and ad networks. This regime contradicts the equilibrium that came into being in the year 2023, where the Information Technology Rules were to launch verification-registration of online games, which the GST Council had moved to reclassify to 28% of taxable actionable claims. That is a compromise of regulate-not-ban and de facto, and as a Bill, it will be superseded by ban-and-carve-out. The extraterritorial Section 1(2) extends such that services rendered abroad to a foreign jurisdiction are also included, meaning offshore structures are not a protection. It implies to boards and investors re-engineering governance, contracts, and technical stacks within narrow confines, with criminal accounts under Section 9. Regulatory Cartography and the Emerging Enforcement Landscape The entire enforcement of the Bill is modelled on a polycentric system of governance where power centres overlap in various directions. The central point in the matters laid is the Authority created under Section 8 and its ability to find the game is an online money game and to make binding directives to the operators, intermediaries, and platforms. The decision-making power to declare it as legal or prohibited is done using the power to classify. States can continue to apply the means of entry of public order and health to legislate to their liking, which Tamil Nadu has already done using its 2023 Act and 2025 Regulations, which mandate Aadhaar KYC, time caps, and advertising ban, as embraced in the recent pronouncement of the Madras High Court. The clause overrides Section 18 of the Bill and prioritises central law in case of any conflict, does not displace state capacity to govern in the area of its state plan, leading to simultaneous regulatory independence of uniformity. Another statutory choke point provisionally contained under Section 7 is the financial system, which prohibits banks, financial institutions, and even payment intermediaries from engaging in the processing of transactions in online money games. This brings the hitherto supervisory soft law to the criminal sanctionable rigid prohibition. Section 14 authorises the blocking of digital content that is related to banned games enforced by the Information Technology Act, 2000. Lastly, Sections 15 and 16 give the regime powers of investigation and those of the police, to permit searches, seizures, and even warrantless arrests. Enforcement is thus carried out along a continuum, consisting of administrative guidelines, infrastructural inhibitors through to criminal procedure. This turns compliance into a kind of regulatory intelligence, which demands real-time updating and board-level monitoring. Executive Accountability and the Expansion of Personal Liability in Corporate Governance The Bill codifies an attributive liability principle in corporate governance. Under Section 11(1), in the case of a company committing an offence, each person who is in charge of, and is also responsible to the company, is liable. Section 11(3) proceeds to make directors, managers, and officers personally guilty, except to exempt independent and non-executive directors who have no involvement in the decision-making process. The punishment of Section 9 is harsh; violations of Sections 5 or 7 are punishable with imprisonment up to three years and fines of up to 1 crore; the penalty is initially raised in case of a recurrence. Section 10 makes the offences cognizable and non-bailable, which makes directors and officers accessible to the coercive process. Most importantly, boards should demonstrate reasoned decision-making and risk-balancing, including legal guidance ahead of product releases, authorisation grids to block code pushes or payment integrations, board notes to document deliberations on the potential harmful impact on consumers, and incident-response procedures to ensure that evidence will not be deleted. Statutory fines and criminal fines are excluded, by default, under D&O insurance. Explicit coverage in regulatory inquiries, enhancements, and survival indemnities in employment contracts are crucial components of employment contracts, whose effectiveness is only effective when simplified by documented diligence. The jurisprudence of the state-level decisions supporting intrusive safeguards contains an unmistakable sign to the courts: they are lenient towards high burden compliance. Presumably, the corporate shield will consist not of rhetoric but of paperwork, immutable logs, deliberative records, and compliance artefacts against which that neglect is hard to assign. Commercial Choke Points in Payments, Platforms, and Digital Intermediation The Bill brings into action one principle of infrastructural enforcement, a principle of closing flows of money and information, instead of simply adjudicating. Section 7 proposes the legislation, a statutory disability of payment, that compels PSPs, aggregators, and banks to freeze or reject transactions regarding banned games. Any judicial review may leave the operators panicking about liquidity. This compels business bargaining of continuity covenants in PSP contracts, to pre-freeze caution, strata throttling, and reinstatement procedures. The conscription is also indirect to the platforms and intermediaries since Section 14 states that the information concerning the online money games can be blocked under the IT Act, 2000. When combined with Section 8(2)(a), which gives the Authority the right to classify any game, this gives rise to a scenario where an administrative classification can lead to app-store de-listings, ad network suspensions. Section 12 goes further still by authorising penalties or barring non-conformance with Authority directions, in effect weaponising the registration position. Also, the regulatory takedown protocols, cure windows, and escrowed settlements for any period under investigation must be included in a contract with PSPs, ad networks, and affiliates. The operators should ensure forensic-ready logs

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Due Process in Indian Antitrust Law: A Reform Long Overdue

Leave a Comment / Competition Law / CBCL

[By Samyak Deshpande and Vedika Kulkarni] The authors are students of Maharashtra National Law University Mumbai Introduction Recently, the Hon’ble Supreme Court of India (SC), in CCI v Schott Glass India, upheld the decision of the Competition Appellate Tribunal (COMPAT), dismissing the appeal filed by the Competition Commission of India (CCI). The Court held that the Director General’s (DG) report was lacking in evidentiary value. To be specific, it was the denial of cross-examination to the affected parties under Section 36 of the Competition Act, 2002 (the Act), a significant procedural lapse putting into question the DG’s entire findings. This shows how such procedural lapses can affect CCI’s decisions’ validity, urging an analysis of the procedure for Indian competition law enforcement. In 2015, the COMPAT had strongly opined that “the time has come for the Commission to lay down guidelines for conducting the investigation/inquiry in consonance with the rules of natural justice.” This came in the Builders Association of India v. Cement Manufacturers’ Association and Others, where the Chairperson of the CCI signed the order without physically attending hearings. The remark pushed for transparency and consistency in the procedure. Yet, nearly a decade later, CCI has issued no formal procedural rules or regulations in this regard. This article highlights the procedural failures of CCI through such cases and analyses the impact of procedural lapses and inconsistent adjudications on businesses. Further it argues that there is an urgent need to implement an enforceable mechanism for procedural fairness within the framework of CCI. The article first outlines the due process requirements under Indian competition law and their role in ensuring fairness. It then analyses key procedural deficiencies, including denial of cross-examination, reliance on incomplete evidence, and delays in adjudication. Thereafter, it subsequently assesses the financial and reputational impact of such lapses on businesses and investor confidence. The discussion concludes by examining international best practices and recommendations, and proposing reforms to embed enforceable due process safeguards within CCI’s framework. Understanding the Due Process Under the CCI (General) Regulations, 2009 (Regulations), the investigation process begins when the CCI forms a prima facie opinion under Regulation 16 of a possible contravention and directs the DG under Regulation 18 to investigate, who then collects evidence and prepares a report for the CCI. Upon receipt of the DG’s report, the CCI may under Regulation 20 invite objections or suggestions from the concerned parties and, if deemed necessary, may direct further investigation. Thereafter, the CCI considers all submissions and evidence on record before passing a final order. The parties are generally afforded an opportunity to be heard in accordance with the procedure established by law. This is the general process followed by CCI. Due process, on the other hand, is the backbone of fair law enforcement, requiring the state to respect principles of natural justice. It goes beyond mere rule-following to ensure that the procedure itself is fair and just. With this foundation in mind, it becomes important to explore how lapses in procedural standards undermine fairness and lead to significant financial and operational consequences for businesses. The Need for Due Process? 1.Lapses in Procedural Standards Despite nominal procedural safeguards under the Act and the Regulations, the CCI’s investigative process suffers from serious procedural flaws that seriously undermine fairness and due process. For example, Regulation 41 allows evidence from informants or 3rd parties to be recorded without the enterprise’s presence, causing concerns of bias. Further, the DG is vested with discretionary authority to permit or deny cross examination of witnesses. When there is no mandatory right to cross-examine, it becomes harder to test the veracity of evidence and ensure a fair trial. In the recent Schott Glass case, the SC noted that despite a clear request for cross-examination, the CCI refused it on the technical ground that no “separate application” had been filed. It made no attempt to assess whether cross-examination was necessary or if its denial would cause prejudice. It was evident that the request was rejected on procedural formality rather than substantive fairness. The Court referred to several precedents that contradicted the CCI’s approach. In Raymond Woollen Mills Ltd. v. Director General (Investigation and Registration) and State of Kerala v. K.T. Shaduli Grocery Dealer, the courts upheld the right to cross-examination as a fundamental aspect of fair procedure. Similarly, in Andaman Timber Industries v. Commissioner of Central Excise, Kolkata, the SC held that denying cross-examination undermined the entire proceeding and vitiated the decision. The Delhi High Court, in Cadila Healthcare Ltd., reinforced this view by holding that when findings rely substantially on oral statements, refusal to permit cross-examination invalidates the decision. It emphasized that discretion to allow or deny cross-examination must be exercised judicially, as was followed by the Schott Glass ruling. Also, the procedural lapses are not limited to just cross-examination but extend beyond the broader rules of fairness and principles of natural justice. There are plenty of matters where the appellate stage revealed such various procedural lapses. To highlight a few, in Google v CCI, the SC held that non-disclosure of key documents violated due process. In Balrampur Chini Mills Ltd. v. CCI, the CCI’s order was overturned primarily due to violations of the principles of natural justice where only three members signed and pronounced the final order despite six members having heard the matter. Further, the parties were not provided an opportunity to be heard after receiving the Supplementary Investigation Report or regarding the quantum of penalty before its imposition. There was also an inordinate delay of 13 months between the conclusion of hearings and the pronouncement of the order, during which the bench composition changed, all of which cumulatively amounted to a breach of the principles of natural justice and procedural fairness. In BCCI v. CCI, CCI was found to have relied on information from the internet public domain materials without giving BCCI an opportunity to respond to that material, thereby violating principles of natural justice. Such procedural lapses in adjudication not only undermine the integrity of the regulatory process

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Author name: CBCL