The Use of Competition Law as a Mechanism of Corporate Governance in India

Competitiveness is a key requirement for modern companies to survive. Effective corporate governance practices are also fast emerging as a fundamental obligation owed to shareholders and other stakeholders. The connection between competition and good corporate governance is derived from the product market competition hypothesis (PMCH) that projects the idea that operating in competitive markets would increase x-efficiency and decrease agency costs in companies, leading to superior corporate governance. Although a significant amount of work, both theoretical and empirical has been carried out on the efficacy of the PMCH, none of the research has been conclusive. Moreover, there has been no concentrated effort into determining the impact of the PMCH on the specific types of agency problems that are endemic to companies with largely concentrated shareholding structures like India. The paper highlights that a part of the reason behind the waning and unconvincing research on the PMCH (specially in India) has been the focus on competitiveness as an abstract concept or empirical construct, rather than on the regulatory aspect of competition, that is, competition law. This paper examines the connection between competition law and corporate governance, specifically the utility of competition regulation in being used to improve corporate governance in companies. It also considers the effectiveness of competition law in dispelling some of the pervasive Indian corporate governance problems such as tunneling and inefficient related party transactions. Some of the methods that are considered which would have such an impact and thus are recommended by the researcher, are a redefinition of ‘dominant position’ in the competition law discourse, to include within it pyramidical groups of companies as well as viewing tunneling practices as having an ‘appreciable adverse effect’ on competition. Doing so would result in numerous efficiencies as competition law could be used to kill two birds with one stone: increasing both competitiveness and good corporate governance.