Amazon’s Competition Investigation in India: A Case for Expansion of Investigation and Grant of Interim Relief

Abstract

In the last few years, associations of domestic retailers have become vociferous opponents of Amazon’s practices in India. In response to complaints of anti-competitive conduct, the Competition Commission of India has initiated an investigation into Amazon’s anti-competitive vertical agreements in online smartphone retail. Against this backdrop, Reuters published a series of investigative reports which indicate that Amazon used internal data of third-party sellers and engaged in preferential treatment of private labels and preferred sellers. The Reuters reports join a series of other reports and studies which reveal that such conduct is pervasive across product categories. In light of this information, this paper makes two broad arguments. First, the paper argues that the scope of the competition investigation in India should be broadened beyond smartphones. The investigation should be reoriented to focus on the relationship between Amazon and its preferred sellers or retailers more broadly, rather than bifurcating the investigation along the lines of separate product categories. Second, the paper argues that the publicly-available information is sufficient to satisfy the legal test for passing an interim order. Such an interim order should prohibit Amazon from acting in the dual capacity of marketplace and seller. The necessity of the interim order has been highlighted through reference to the potentially irreparable and unquantifiable harm done to competition and consumers and the protracted nature of competition proceedings which might render the final order redundant.