Admittedly, the ICC has adopted a number of notable substantive decisions regarding vertical restrictions, including the maintenance of resale prices (Vivo); KC Marketing vs. OPPO Mobiles MU Private Limited (Oppo)) (hereafter widely discussed), the following two developments are generally noteworthy: in addition to the vertical restrictions mentioned above, the law also refers to the “refusal of trade” of vertical restriction and prohibits these agreements when they cause a CEA in India. Please read our response to question 2.3. Refusal of the agreement is prohibited if it is at the source or cause of an AAEC in India. Exclusive delivery agreements cover agreements that prevent the buyer from buying or processing the goods of the seller or another person and are prohibited only if they are at the source or origin of an AAEC in India. At Autoparts, for example, OEMs have been accused of limiting their dealers to purchasing spare parts from alternative sources. The ICC noted that OEMs had significant market power for the supply of spare parts in their respective post-market markets (a spare part of an OEM was considered non-substitute for that of another OEM, which dominated each OEM when delivering its respective spare parts) noted that this restriction on the ban on off-seat sales from closing independent repairers and other auto repair service providers was prohibited. This restriction was assessed under provisions prohibiting “refusal to conclude” and “exclusive supply agreements.” Under what circumstances do the vertical restriction rules apply to agreements between a parent company and a related company (or between affiliates of the same parent company)? Does the request for a vertical restriction agreement require a formal agreement to be concluded in writing or can the relevant rules be reached through an informal or unwritten agreement? The ICC tends to extend the ip exemption advantage to vertical restrictions and has clarified that the IP exemption would not apply in cases where the holder could protect its intellectual property rights through a less restrictive method (see Autoparts). Have decisions or guidelines on vertical restrictions, in any way, dealt with restrictions on the territory in which a buyer who sells on the Internet is allowed to resell contract products? The Ramakant case highlighted the independent applicability of Section 3, paragraph 1, because horizontal and vertical agreements are only a subspecies of anti-competitive agreements and do not in any way exhaust the scope of this section [Ramakant case, No. 11]. Therefore, agreements that do not fall within the strict scope of paragraphs 3 and 3 (4) fall within the residual category of Section 3, paragraph 1.
This autonomous interpretation of Section 3, paragraph 1, was contrary to the Commission`s previous decisions. The interpretation in Ramakant became that in the case of Govind Agarwal/.