CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT

TH

COMPETITION 2020
TEAM CODE:TC 19

CCI-HNLU 12TH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT

COMPETITION 2020

IN THE COMPETITION APPELLATE TRIBUNAL

IN THE MATTER OF:

ROARK INDUSTRIES INC. AND ANOTHER ………………………APPELLANTS

VERSUS.

COMPETITION COMMISSION OF RURITANIA…………….…...RESPONDENT

~ WRITTEN SUBMISSION ON THE BEHALF OF APPEALANTS ~

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|1
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

TABLE OF CONTENTS

Table of contents ........................................................................................................................ 2

Table of abbreviations................................................................................................................ 4

Index of authorities .................................................................................................................... 5

Statement of jurisdiction ............................................................................................................ 7

Statement of facts ....................................................................................................................... 8

Issues raised ............................................................................................................................. 10

Summary of arguments ............................................................................................................ 11

ISSUE I: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED TO
HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE? .............................................. 11

ISSUE II: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT DURING
THE DAWN RAID AND DEPOSITION?.......................................................................... 11

ISSUE III: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF
INFORMATION/ CARTELISATION? .............................................................................. 11

ISSUE IV: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED
IN REFUSAL TO DEAL? ................................................................................................... 12

Arguments advanced ................................................................................................................ 13

ISSUE-1: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED
TO HAVE NOTIFEID ITS ACQUISITION OF BRILLANTE? ........................................ 13

(I.A) Exemption under De Minimis Rule ........................................................................ 13

(I.B) Consolidated financial statements are not required to be considered ..................... 14

ISSUE-2: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYERS PRESENT DURING
THE DAWN RAID AND DEPOSITION?.......................................................................... 16

II. A. It is within the ambit of natural justice. .................................................................. 16

II. B. The Raid in itself was ultra-vires to the competition act ........................................ 18

ISSUE-3: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF

INFORMATION/CARTELISATION? ............................................................................... 20

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|2
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

(III. A) The exchange of information did not amount to cartelization. ........................... 20

III. B. PROVISION OF MFN TREATEMENT TO GENZ CAN NOT BE VIEWED AS

EVIDENCE OF CARTELIZATION ............................................................................... 22

ISSUE-4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN

REFUSAL TO DEAL? ........................................................................................................ 23

IV. A. Brillante has reasonably exercised rights over it’s intellectual property .............. 23

IV. B. Brillante does not enjoy a dominant position in the market ................................. 25

prayer ....................................................................................................................................... 28

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|3
CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

TABLE OF ABBREVIATIONS

¶ Para
¶¶ Paras
AAEC Appreciable Adverse Economic
Consequence
AI Artificial Intelligence
AIR All India Reporter
Anr. Another
CCI Competition Commission of India
CCR Competition Commission of Ruritania
CEO Chief Executive Officer
Co. Company
DG Director General
FCA French Competition Authority
Hon’ble Honourable
MFN Most Favoured Nation
OECD Organisation for Economic Co-operation
and Development
Ors. Others
SCI Supreme Court of India
Sec. Section
SCC Supreme Court Cases
SAIL Steel Authority of India
UOI Union of India
v. Versus

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|4
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

INDEX OF AUTHORITIES

Statutes
THE COMPETITION ACT, 2002, § 26(1), No. 12 ACT OF PARLIAMENT 2003(INDIA)19
THE COMPETITION ACT, 2002, § 3(1), No. 12 ACT OF PARLIAMENT 2003(INDIA).20,
23
THE COMPETITION ACT, 2002, § 36(1), No. 12 ACT OF PARLIAMENT 2003 ............. 16
THE COMPETITION ACT, 2002, § 41(3), No. 12 ACT OF PARLIAMENT 2003 ............. 16
THE COMPETITION ACT, 2002, § 41(3), No. 12 ACT OF PARLIAMENT 2003(INDIA. 19
THE COMPETITION ACT, 2002, § 5, No. 12 ACT OF PARLIAMENT 2003(INDIA ....... 14

Regulations
Government of India Notification dated 27 March 2017, S.O. 988(E) ................................... 13
Government of India Notification dated 4March 2011, S.O. 482(E). ..................................... 14

SUPREME COURT CASES

CCI vs. SAIL, (2010) 10 SCC 744. ......................................................................................... 19
Competition Commission of India v. Grasim Industries Ltd., 2019 SCC OnLine Del 10017 17
Excel Crop Care Ltd. v. CCI, (2017) 8 SCC 47 ...................................................................... 16
Hyundai Motor India Ltd. v. Competition Commission of India, Competition Appeal (AT) No.
6 of 2017, decided on 19-9-2018. ........................................................................................ 17

HIGH COURT CASES

Delhi High Court, (LPA 607/2016; Judgment dated 24 May 2018 ......................................... 18

INTERNATIONAL CASES
Blue Cross Blue Shield v. Marshfield Clinic, 65 F.3d 1406 (7th Cir. 1995)........................... 22
Cour de cassation, Criminal Chamber, May 4th 2017, n°16-81071. ....................................... 17
Hoechst v. Commission C-46/87 and C-227/88, ECLI:EU:C:1989:337 ................................. 17

STATUES REFERRED
Article 82(exArticle 31 TEU ................................................................................................... 26
THE COMPETITION ACT, 2002, § 3(4), No. 12 ACT OF PARLIAMENT 2003(INDIA... 22
THE COMPETITION ACT, 2002, § 3(5), No. 12 ACT OF PARLIAMENT 2003(INDIA). 24

INDIAN CASES

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|5
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

Case No. 08 of 2016 CCI ......................................................................................................... 26

case no. 1 of 2017 (In Re: Alleged Cartelisation in Flashlights Market in India) CCI ........... 21
Case No. 12 of 2016 CCI. ........................................................................................................ 26
Case No. 15 of 2018 CCI ......................................................................................................... 24
Case No. 30 of 2019 CCI ......................................................................................................... 24
Eli Lilly & Co. VS Competition Commission of India , TA (AT) (Competition) No. 03 of 2017
.............................................................................................................................................. 15

MOOT PROPOSITION
Para 7, Moot Proposition CCI-HNLU 12TH JUSTICE HIDAYATULLAH NATIONAL MOOT
COURT COMPETITION, 2020 .......................................................................................... 22
Para 7, Moot Proposition CCI-HNLU 12TH JUSTICE HIDAYATULLAH NATIONAL MOOT
COURT COMPETITION, 2020. ......................................................................................... 25

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|6
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Competition Appellate Tribunal, under Section 53B
of the Competition Act, 2002.

53B:Appeal to Appellate Tribunal

(1) The Central Government or the State Government or a local authority or enterprise or any
person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A
may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date
on which a copy of the direction or decision or order made by the Commission is received by
the Central Government or the State Government or a local authority or enterprise or any person
referred to in that sub-section and it shall be in such form and be accompanied by such fee as
may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the
expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not
filing it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the
parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or setting aside the direction, decision or order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and
the parties to the appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by
it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within
six months from the date of receipt of the appeal.

The present memorial on behalf of the Appellant sets forth the facts, contentions, and
arguments in the present case.

THE ABOVE LAWS OF THE COUNTRY OF RURITANIA ARE IN PARI

MATERIA TO THE LAWS OF COUNTRY OF INDIA

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|7
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

STATEMENT OF FACTS

BACKGROUND OF RURITANIA

1. The Kingdom of Ruritania is a state which had been a British colony for the last 200
years before its declaration of independence in 1947 resulting in the formation of the
state of Ruritania. Ruritania has a population of 1.4 billion people and has adopted its
own constitution. After its independence Ruritania had a closed economy until the
1990s. With the advent of economic liberalization and the entry of multinational
corporations Ruritania entered a period of unprecedented economic growth.
2. The Ruritanian parliament passed stronger and more versatile laws to regulate its
evolving economy. For instance, while its laws historically sanctioned monopolies and
restrictive trade practices, the Ruritanian Parliament, in 2002, enacted the Competition
Act, 2002 (Competition Act) which led to the establishment of the Competition
Commission of Ruritania (hereinafter CCR).

FUNCTIONING OF COMPETITION COMMISSION

3. The CCR passes orders to direct its investigative arm, the Director General (hereinafter
DG), to open investigations against perceived anti-competitive conduct based on
references received from the government or its agencies upon which a prima facie case
is made out. It passes final orders after conducting hearings. Further appeals can be
made to the Competition Appellate Tribunal and orders of the Tribunal can be appealed
to the Ruritanian Supreme Court.

EVENTS

4. Roark Industries Inc. (hereinafter Roark) is a USA based multinational conglomerate,

producing products across sectors including the manufacturer of chips for air defence
systems. In March 2021 Roark acquired Brillante Technologies Private Limited
(hereinafter Brillante) including its Ruritanian subsidiary. Brillante has developed a

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|8
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

patented AI technology which has pathbreaking applications in chip manufacturing.

The majority of the prominent chip manufacturers use Brillantes AI technology.
5. CCR conducted a dawn raid between 0000 hours to 2300 on Roark after receiving a
reference regarding cartelization and anti-competitive conduct. In addition Roark’s
lawyers were denied entry into Roark’s Offices. During the deposition conducted by
CCR it was revealed that Roark had shared pricing strategies and customer retention
policies with GENZ Pvt. Ltd (hereinafter GENZ), a competitor in which Roark is a
minority shareholder.
6. The CCR found evidence that suggested Roark was pressuring Brillante to negotiate its
terms of use and license with Roark’s competitors and to provide MFN treatment to
GENZ, instances of intentional delay of negotiations were also found. On the basis of
the dawn raid the DG was ordered to initiate an investigation. Additionally, a show
cause notice was issued to Roark regarding their acquisition.
7. Upon the DG’s report the CCR decided that the exchange of information between Roark
and GENZ amounted to cartelization, changing the license term and causing intentional
delays suggested Brillante has engaged in refusal to deal, lastly CCR officials had not
erred by conducting the depositions in the absence of Roark’s lawyers.
8. With regards to gun-jumping proceedings CCR concluded that Roark was required to
notify its acquisition of Brillante, reasoning that consolidated financial statements of its
Indian subsidiary should be considered which included offshore subsidiaries.

The Competition Appellate Tribunal has posted the matters for final hearing on 11th
Feb, 2021.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|9
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

ISSUES RAISED

ISSUE -1

WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED TO HAVE
NOTIFEID ITS ACQUISITION OF BRILLANTE?

ISSUE-2

DID ROARK HAVE A RIGHT TO HAVE ITS LAWYERS PRESENT DURING THE
DAWN RAID AND DEPOSITION?

ISSUE-3

WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF

INFORMATION/CARTELISATION?

ISSUE-4

WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN REFUSAL

TO DEAL?

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|10
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

SUMMARY OF ARGUMENTS

ISSUE I: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED
TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE?

It is most humbly submitted before the tribunal that the CCR was wrong in finding that Roark
was required to have notified its acquisition of Brillante as it is exempted under the target test
of acquiring. The total revenue of Brillante in Ruritania was under the limit established by the
Ministry of Corporate Affairs of total turnover that is 1000 crore rupees. The need of
consolidated financial statements as to the turnover of wholly owned subsidiary located outside
Ruritania and has its operation entirely outside Ruritania is not required when interpreting the
intent of the Competition Act.

ISSUE II: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT
DURING THE DAWN RAID AND DEPOSITION?

It is most humbly submitted before the tribunal that Roark had the right to have its lawyers
present during the dawn raid and deposition. The officials were wrong in refusing the lawyers
entry as it is in consonance with the principle of natural justice, within which the CCR
functions. Additionally, it is humbly submitted that the power given to DG by the act is
enormous and wide ranging. Such powers can be easily abused during the deposition. The right
of lawyers under the advocates act to practice before the DG has also been affirmed in court
judgements. In the instant case the officials are at fault as the raid was an abuse of authority
running ultra-vires to the act.

ISSUE III: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE
OF INFORMATION/ CARTELISATION?

It is humbly submitted that the CCR was wrong in penalising Roark for exchange of
information/cartelisation as Roark has merely exchanged information with GENZ. The

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|11
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

information has neither been implemented in the market nor is there proof that it has resulted
in any appreciable adverse economic consequences. As has been found by the CCI in previous
cases, the mere exchange of information cannot be viewed as evidence of cartelisation.
Additionally, it is humbly submitted that the evidence suggesting Brillante had been pressured
to provide Most Favoured Nation treatment to GENZ cannot be viewed as evidence of
cartelization.

ISSUE IV: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD

ENGAGED IN REFUSAL TO DEAL?

It is humbly submitted that the CCR was wrong in finding Brillante had engaged in refusal to
deal as Brillante has reasonably exercised rights over its own intellectual property. It is also
submitted that no agreement as laid out under Section 3(1) of the Competition Act as Brillante
has only requested to negotiate its licensing agreements. No new agreements have been made.
Lastly, it is not possible for Brillante to have committed an abuse of dominance as Brillante
itself does not enjoy a dominant position in the market.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|12
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

ARGUMENTS ADVANCED

ISSUE-1: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS

REQUIRED TO HAVE NOTIFEID ITS ACQUISITION OF BRILLANTE?

1. It is humbly submitted before the tribunal that the CCR was wrong in finding that Roark
was required to have notified its acquisition of Brillante as the said acquisition is
covered under the De Minimis Exemption (I.A) and consolidated financial statements
are not required to be considered (I.B).

(I.A) EXEMPTION UNDER DE MINIMIS RULE

2. It is humbly submitted before the tribunal that in March 2021, Roark Industries Inc.
completed its acquisition of Brillante Technology limited including its subsidiary in
Ruritania. Roark Industries was under no obligation to notify this acquisition to the
CCR as it is covered under the target exemption/ De Minimis exception.
3. Ministry of Corporate Affairs in its notification on 27th March, 20171 stated that In
exercise of the powers conferred by clause (a) of section 54 of the Competition Act,
2002 (12 of 2003), the Central Government, in public interest, hereby exempts the
enterprises being parties to –– (a) any acquisition referred to in clause (a) of section 5
of the Competition Act; (b) acquiring of control by a person over an enterprise when
such person has already direct or indirect control over another enterprise engaged in
production, distribution or trading of a similar or identical or substitutable goods or
provision of a similar or identical or substitutable service, referred to in clause (b) of
section 5 of the Competition Act; and (c) any merger or amalgamation, referred to in
clause (c) of section 5 of the Competition Act, where the value of assets being acquired,
taken control of, merged or amalgamated is not more than rupees three hundred and
fifty crores in Ruritania or turnover of not more than rupees one thousand crores in

1
Government of India Notification dated 27 March 2017, S.O. 988(E).

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|13
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

Ruritania, from the provisions of section 5 of the said Act for a period of five years
from the date of publication of this notification in the official gazette.
4. In accordance of the information given in Annexure 1 it is evident that the total revenue
of Brillante in Ruritania is Rupees 180 crores which is far below the threshold of Rupees
1000 crore.
5. The intention behind the Notification dated 04.03.20112 issued by the Central
Government under Section 54 of the Act was to exempt certain transactions due to their
small size. The intention of the Government is made clear by the Press Release dated
30.03.2017 where it is stated that “combinations falling within the threshold limits
would not require to be filed before the Competition Commission of India. The reform
is in pursuance of the Government’s objective of promoting Ease of Doing Business in
the country and is expected to make India a more attractive destination for Foreign
Direct Investment. The notification is expected to enable greater freedom to industry in
taking legitimate business decisions towards further accelerating India’s economic
growth.”
6. This makes it clear that the Central Government did not wish that the CCI interfere in
acquisition of an enterprise that was within the De Minimis exemption or an acquisition
of assets that were De Minimis.
7. Thus it is humbly submitted before the tribunal that the said acquisition is within the
limits of exemption.

(I.B) CONSOLIDATED FINANCIAL STATEMENTS ARE NOT REQUIRED TO BE CONSIDERED

8. It is humbly submitted before the tribunal that the CCR’s observation that Brillante
Ruritania’s consolidated financial statements were required to be considered which
included financials of its offshore subsidiaries is wrong in light of the interpretation and
intent of De Minimis exemption.
9. The De Minimis exemption specifically uses the words “in Ruritania”, to give
interpretation to these words with respect to the competition act, section 5(a)(1)(B) and
section 5(a)(2)(B)3 of the competition are to be referred which starts with the words “in

2
Government of India Notification dated 4March 2011, S.O. 482(E).
3
THE COMPETITION ACT, 2002, § 5, No. 12 ACT OF PARLIAMENT 2003(INDIA).
~~MEMORANDUM ON THE BEHALF OF APPELLANT~~
Page|14
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

Ruritania or outside Ruritania” which suggest that the calculation of assets and turnover
are divided as “in” Ruritania and “outside” Ruritania. Thus, the assets and turnover of
any subsidiaries located outside Ruritania whose operations are entirely outside
Ruritania will fall in the category of “outside Ruritania”.
10. In the case of Eli Lilly & Co. VS Competition Commission of India4 the appellant
tribunal brought in the idea of true target, and the influence that the true target has on
the market. In the same judgement it was also held that The De Minimis Exemption
applied to acquisitions of enterprises whose sales in India were not more than INR 750
crores or whose Indian assets were valued not more than INR 250 crores. The
exemption was enacted because the Act’s initial filing thresholds applied only to
parties’ “combined’ sales or assets in India, and therefore could catch transactions
where the business being acquired had minor activities in India. The phrase “combined
sales” sheds light in the interpretation of “turnover in India” used in section 5 of the
act. There by equating to turnover to sales that took place in India, meaning that any
revenue from sales not taking place in India will not be included in the meaning of
revenue in India.
11. The intent of the Competition Act is to promote and protect the competition in Ruritania
and the act is concerned with how a certain combination can affect the competition in
Ruritania. Thus the words “in Ruritania” are intended to analysis an enterprise’s hold in
the Ruritanian market, the intent of measuring in terms of turnover and asset is not to
analysis an enterprise’s financial stability but rather to the extent of Ruritanian market
that is influenced by such enterprise. Additionally the act didn’t use the words
“consolidated turnover or consolidated assets”.
12. Thus it is humbly submitted that considering consolidated assets or turnover of an
offshore subsidiary whose operations are entirely outside Ruritania is neither in line
with the interpretation of the rule/notification nor in line with the intent of the
Competition Act and that the CCR was wrong in finding that Roark was required to
have notified its acquisition of Brillante.

4
Eli Lilly & Co. VS Competition Commission of India , TA (AT) (Competition) No. 03 of 2017.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|15
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

ISSUE-2: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYERS PRESENT

DURING THE DAWN RAID AND DEPOSITION?

13.It is humbly submitted before the tribunal that Roark had a right to have its lawyer
present during the dawn raid and deposition as it is with in the ambit of natural justice (II.
A) Also the raid in itself was ultra-vires to the competition act (II. B).

II. A. IT IS WITHIN THE AMBIT OF NATURAL JUSTICE.

13. It is humbly submitted before the tribunal that officials from the CCR conducted a
“dawn raid” on Roark’s Ruritanian offices, after receiving a reference from the
Ruritanian Ministry of Commerce, regarding alleged cartelization and anticompetitive
conduct. CCR officials denied Roark’s Lawyers entry into Roark’s offices. Further, by
the time Roark’s lawyers had arrived, CCR officials had conducted deposed Roark’s
top officials. The denial of the presence of legal representative was beyond the scope
of natural justice that is Right to be heard.
14. Section 36(1) states that “In the discharge of its functions, the Commission shall be
guided by the principles of natural justice and, subject to the other pro visions of this
Act and of any rules made by the Central Government, the Commission shall have the
powers to regulate its own procedure.”5
15. Section 41(3) states that “Without prejudice to the provisions of sub-section (2),
sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall
apply to an investigation made by the Director General or any other person investigating
under his authority, as they apply to an inspector appointed under that Act”6
16. SC in Excel Crop Care Ltd. v. Competition Commission of India7 held that the DG
would be well within its powers to investigate and analyse additional facts during its
investigation subject to certain conditions.
17. The High Court of Judicature at Madras in Hyundai Motor India Ltd. v. Competition
Commission of India held that “the scope of DG’s investigation is not limited to the

5
THE COMPETITION ACT, 2002, § 36(1), No. 12 ACT OF PARLIAMENT 2003.
6
THE COMPETITION ACT, 2002, § 41(3), No. 12 ACT OF PARLIAMENT 2003.
7
Excel Crop Care Ltd. v. CCI, (2017) 8 SCC 47.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|16
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

allegations contained in the original complaint and he is empowered to investigate other

facts that get revealed while the investigation is carried out”8. Additionally, the High
Court of Delhi in Competition Commission of India v. Grasim Industries Ltd held that
“the opinion formed by the CCI at the stage of issuing directions to the DG under
Section 26(1) of the Act is not intended to restrict the opinion that may be formed by
the DG upon such investigation”9.
18. Although the Companies Act, 2013 which replaced the Companies Act, 1956 removed
from its sections the mandatory requirement from magistrate for search and seizure still
every search and seizure should be in line with the CrPC thus the DG is still required
to take warrant and such warrant is important as to ensure that the search is for a genuine
reason and there is no abuse of power.
19. In light of the extended power of the DG to go beyond what is ordered in the warrant,
the chances of DG acting in manner not in accordance with natural justice is high and
such limitless search could hamper the privileges which a company shares with other
entities. The presence of lawyer is essential to avoid such situation.
20. The European Court of Justice in its land mark judgement of Hoechst v. Commission10
held that “the right of defence must be respected during preliminary inquiry procedures,
including in particular investigations that may be decisive in providing evidence of
infringements of the competition rules.” The right of defence was thus not considered
to be reserved for the adversary stage of a competition case.
21. French Cour de Cassation (Supreme Court) in 2017 passed a judgement that Samsung
Electronic’s rights of defence were breached when the French Competition Authority
(the FCA) conducted raids against the company. Cour de Cassation held that “the rights
of the defence can be exercised by the occupier of the premises as soon as the concerned
company is notified of the order authorising visiting and seizure operations. If this right
is obstructed by the administrative authority, the visiting and seizure operations are
vitiated”11.

8
Hyundai Motor India Ltd. v. Competition Commission of India, Competition Appeal (AT) No. 6 of 2017,
decided on 19-9-2018.
9
Competition Commission of India v. Grasim Industries Ltd., 2019 SCC OnLine Del 10017.
10
Hoechst v. Commission C-46/87 and C-227/88, ECLI:EU:C:1989:337.
11
Cour de cassation, Criminal Chamber, May 4th 2017, n°16-81071.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|17
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

22. In accordance with these judgements its evident and clear that various authorities of
competition law believe that the presence of lawyers is important during a search and
seizure operation by competition authority in order to keep the power in check. Further,
the same is in line with natural justice and the CCR’s action of preventing Roark’s legal
representative from entering the premises is in violation of the very natural justice on
which the CCR functions.
23. High Court of Delhi in a case related to cartel investigation held that “the DG is a person
"legally authorized to take evidence" under the Competition Act, 2002 (Competition
Act), therefore, in terms of Section 30 of the Advocates Act, 1961, an advocate has a
right to practice before the DG and a litigant has a right to engage the services of an
advocate when appearing before the DG.” The court noted that the Competition Act
does not restrict this right. In the same case it was also held “the DG has wide powers
and the consequences of any investigation could be drastic and, therefore, it seemed
necessary to protect the right of a person to be accompanied by an advocate when
appearing before the DG for recording of evidence”12
24. The deposition of the top officials of Roark was an act of collection evidence and
barring the legal representatives from being there is in clear violation of the Act which
was clarified by High Court of Delhi in its judgement.
25. Thus it is humbly submitted before the tribunal that Roark has the right to have its
lawyer present during the dawn raid and deposition as it is with in the ambit of natural
justice which is the procedure on which the act functions.

II. B. THE RAID IN ITSELF WAS ULTRA-VIRES TO THE COMPETITION ACT

26. It is humbly submitted before the tribunal that the dawn raid which was conducted by
the officials of CCR on Roark’s Ruritanian offices was ultra-vires to the Competition
Act is it is beyond the powers which are confined to CCR by the Competition Act.
27. Section 26(1) of the act states that “On receipt of a reference from the Central
Government or a State Government or a statutory authority or on its own knowledge or
information received under section 19, if the Commission is of the opinion that there

12
High Court of Delhi, (LPA 607/2016; Judgment dated 24 May 2018).

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|18
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

exists a prima facie case, it shall direct the Director General to cause an investigation
to be made into the matter” so the responsibility of investigation is of the DG on receipt
of a direction of the commission13.
28. Section 41(3) states that “Without prejudice to the provisions of sub-section (2),
sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall
apply to an investigation made by the Director General or any other person investigating
under his authority, as they apply to an inspector appointed under that Act.”14 Since the
Companies Act, 1956 is replaced with Companies Act, 2013 the relative section of this
act can be referred that is section 217 and 220, these section are related to search and
seizure function.
29. Dawn raid is an unannounced raid which is a search and seizure operation and as the
power to search and seizure is clearly only given to the DG or any person under his
authority so if any person other than DG or person under his authority conducts a search
and seizure operation then it would be ultra-vires to the act.
30. In current case the CCR, based on the dawn raid it had conducted, passed a prima facie
order against Roark and others, ordering the DG to initiate an investigation, meaning
that dawn raid was conducted by officials who is neither DG nor a person under his
authority, the very fact that prima facie case was made on the basis of dawn raid
conveys the abuse of power by CCR and that CCR went beyond its power thus being
ultra-vires to the act. A act subsequent of an ultra-vires act and never be justified thus
the barring of Roark’s lawyers to enter the premises was wrong, unjustified and blatant
abuse of power.
31. In the case of CCI v SAIL it was held that “It is not obligatory on the part of the CCI
to issue notice or grant hearing to the opposite parties prior to the issuance of direction
to the Director General to commence investigation on an complaint under section 26(1)
of the Act , still the Commission may hold preliminary conference to seek assistance
with the concerned parties before framing a prima facie opinion under Section 26(1) of
the Act, with regards to the General Regulations, however, no party can assert it as a
matter of right.”15

13
THE COMPETITION ACT, 2002, § 26(1), No. 12 ACT OF PARLIAMENT 2003(INDIA).
14
THE COMPETITION ACT, 2002, § 41(3), No. 12 ACT OF PARLIAMENT 2003(INDIA).
15
CCI vs. SAIL, (2010) 10 SCC 744.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|19
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

32. This judgement limits the parties right to be heard only in the stage where prima facie
opinion is formed but conducting a dawn raid is not a way to frame prima facie opinion
but rather an investigation which if done should have been done by DG, thus the
judgment in CCI v SAIL cannot act as a defence by CCR as the raid apart from being
ultra-vires it was an investigation hidden under the mask of prima facie opinion.
33. Thus it is humbly submitted before the tribunal that the raid was conducted by CCR
officials who weren’t from the office of DG or DG himself/herself, who do not have
the power to conduct raid thus the raid in itself was ultra-vires to the act and any
evidence collected by such abuse and misrepresentation of power should be vitiated.
Also since the officials had no power to conduct the raid, they in turn didn’t have power
to bar the entry of Roark’s lawyer into the premises. If lawyers were allowed then such
an ultra-vires act could have been avoided. It is humbly submitted before the tribunal
that Roark had a right to have its lawyer present during the dawn raid and deposition.

ISSUE-3: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE

OF INFORMATION/CARTELISATION?

34. It is submitted that the CCR was wrong in penalising Roark for exchange of
information/cartelization as the information exchanged between the executives or
Roark and GENZ did not amount to cartelization under Sections 3(3) of the act.

(III. A) THE EXCHANGE OF INFORMATION DID NOT AMOUNT TO CARTELIZATION.

35. It is humbly submitted that during the deposition conducted by the CCR the Ruritarian
CEO of Roark revealed that certain information relating to pricing strategy and
customer retention policies, with GENZ, a competitor of Roark in the chip
manufacturing industry.
36. It is submitted that the sharing of such information did not amount to cartelization.
Section 3(1)16 states “No enterprise or association of enterprises or person or
association of persons shall enter into any agreement in respect of production, supply,

16
THE COMPETITION ACT, 2002, § 3(1), No. 12 ACT OF PARLIAMENT 2003(INDIA).
~~MEMORANDUM ON THE BEHALF OF APPELLANT~~
Page|20
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

distribution, storage, acquisition or control of goods or provision of services, which

causes or is likely to cause an appreciable adverse effect on competition within India.”.
Under the given circumstances, the mere exchange of information cannot be viewed as
an offence as there is no proof of the implementation of this pricing information nor
proof of any such information having an appreciable adverse effect on the market.
37. In a Suo Moto case initiated against four manufacturers of battery operated flashlights,
the CCI held that the mere exchange of pricing information without implementation
does not amount to cartelisation.17
38. Additionally, evidence of information exchange must be weighed against evidence
demonstrating that: (i) the agreed-upon coordinated behaviour was
implemented/realised in the market; and (ii) that such behaviour resulted in AAEC
and/or consumer harm.
39. It is argued that any exchange of information between both the parties was used for the
legitimate interest of both the parties. As Roark is a minority shareholder in the
company of GENZ therefore it was in the legitimate interests of both the parties to share
information so that profits can be increased in a legitimate manner without creating any
adverse effect on the competition. And according to the initial enquiry information that
was shared was of the nature that cannot be said to be anti-competitive. The information
was not of the sensitive nature and cannot be said to have caused interference with the
normal conditions of a competition in the market. It is humbly argued before the
tribunal that in present case even of there was a possible exchange of emails among
parties but the same could not be said to be presumed to have caused AAEC and even
if presumed to have caused an understanding, the said understanding cannot be said to
have been turned into an event of cartelisation.
40. Additionally, it is humbly submitted that the role of the Ruritarian CEO of Roark as a
member of the board of directors of GENZ cannot be viewed as a factor which supports
the existence of a cartel between GENZ and Roark. The Ruritarian CEO of Roark only
served on the board of directors of GENZ in his personal capacity and any actions taken
in said position must be viewed as independent of Roark. In addition to this there is no
evidence of him possessing any influence over the day to day operations of GENZ.

17
Case no. 1 of 2017 (In Re: Alleged Cartelisation in Flashlights Market in India) CCI.
~~MEMORANDUM ON THE BEHALF OF APPELLANT~~
Page|21
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

III. B. PROVISION OF MFN TREATEMENT TO GENZ CAN NOT BE VIEWED AS

EVIDENCE OF CARTELIZATION

41. It is humbly submitted before the honourable tribunal that providing MFN treatment to
GENZ cannot be said to be anti-competitive on the face value of the case. Further on it
is to be submitted that there is no mention of MFN treatment to be anti-competitive in
the competition act of India.
42.
The CCI in its recently published report on market study on e-commerce in India 202018
specified that the parity clause or MFN clauses can be assessed under the section 3(4)19
of the competition act, under a rule of reason framework. The most obvious pro-
competitive benefit of an MFN usually is some assurance of lower prices to the buyer.
43. The US Court of Appeals for the Seventh Circuit has described MFNs as a means for
buyers to bargain for low prices and distinguished it from price-fixing (Blue Cross &
Blue Shield United v. Marshfield Clinic20 ). Further, as Brilliante group is now working
under the supervision of the Roark group it can be said to be an agreement clause under
the usual course of business. It is submitted that MFN clause is an obligation imposed
on one party by another to treat it at par with the other competitive parties this implies
that the party will be offered the most favourable terms as is being offered to any other
competitor and as the Roark group owns 9.5%21 stake in the GENZ group therefore it
was in the usual course of business to add MNF and close to their agreement.
44. Therefore it is humbly submitted that no offence of cartelization has occurred under
Section 3 of the Act. Additionally Roark has acted strictly within the ambit of the law
and has not been the source of any circumstance which may have an appreciable
adverse effect on the market.

18
Competition Commission of India, Market Study on E-Commerce in India Key Findings and Observations, ¶72,
2020.
19
THE COMPETITION ACT, 2002, § 3(4), No. 12 ACT OF PARLIAMENT 2003(INDIA).
20
Blue Cross Blue Shield v. Marshfield Clinic, 65 F.3d 1406 (7th Cir. 1995).

21
Para 7, Moot Proposition CCI-HNLU 12TH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
COMPETITION, 2020.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|22
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

ISSUE-4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED

IN REFUSAL TO DEAL?

45. It is humbly submitted to the tribunal that the CCR has been wrong in finding that
Brillante has engaged in an unlawful refusal to deal. Brillante has a right to exercise
control over its patented AI technology (IV.A). Additionally, Brillante has been found
to not enjoy a dominant position in the market and thus Brillante’s renegotiation of
contracts and subsequent delays cannot be viewed as an abuse of dominance
and refusal to deal (IV. B).

IV. A. BRILLANTE HAS REASONABLY EXERCISED RIGHTS OVER IT’S INTELLECTUAL

PROPERTY

46. It is humbly submitted to the tribunal that Brillante is a company that has developed
innovations in Artificial Intelligence (AI), with applications in various industrial
processes through years of hard work and investment. In particular, Brillante developed
a patented AI technology with pathbreaking applications in chip manufacturing.
47. Section 3(1) of the Competition Act states “No enterprise or association of enterprises
or person or association of persons shall enter into any agreement in respect of
production, supply, distribution, storage, acquisition or control of goods or provision of
services, which causes or is likely to cause an appreciable adverse effect on competition
within India”22.
48. In the instant case it is humbly submitted that no agreement has taken place between
Brillante and the companies Brillante licences its technology to. Brillante has merely
reached out to certain companies requesting to renegotiate licences. Section 3(1) clearly
states no company shall enter into an agreement likely to cause an appreciable adverse
effect on competition within India. In the absence of an agreement in the instant case
Brillante cannot be said to have committed any wrong.
49. It is humbly further submitted that Section 3(5) provides for “the right of any person
to restrain any infringement of, or to impose reasonable conditions, as may be necessary
for protecting any of his rights which have been or may be conferred upon him under

22
THE COMPETITION ACT, 2002, § 3(1), No. 12 ACT OF PARLIAMENT 2003(INDIA).
~~MEMORANDUM ON THE BEHALF OF APPELLANT~~
Page|23
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

(a) the Copyright Act 1957; (b) the Patents Act 1970; (c) the Trade and Merchandise
Marks Act 1958 or the Trade Marks Act 1999; (d) the Geographical Indications of
Goods (Registration and Protection) Act 1999; (e) the Designs Act 2002; and (f) the
Semiconductor Integrated Circuits Layout-Design Act 2000”23.
50. The Patents Act, 1970 provides the owner of the patent the right to manufacture, sell,
or grant licences for the use of their patent by third parties. Therefore upon reading
Sections 3(1), 3(4), and 3(5) of the Competition Act along with Section 48(b) of the
patent act, Brillante has the right to reasonably exercise control over its patent as may
be necessary for protecting its rights conferred as under the Patents Act.
51. In the case of Tamil Nadu Consumer Products Distributors Association v. Vivo
Communication Technology Company the CCI held Vivo Communications’ insertion
of non-compete clauses in contracts with distributors in order to prevent their
intellectual property from being leaked to competing manufacturers was a reasonable
exercise of their intellectual property24.
52. In the case of Air Works India (Engineering) Private Limited v. GMR & Ors, the CCI
held that the mere existence of a refusal to deal could not be viewed as an
anticompetitive practice. The Commission laid out the following test to determine when
a refusal to deal qualifies as anticompetitive; “firstly, the refused input is indispensable
for an entity in order to compete on the downstream market; secondly, refusal shall
most likely eliminate competition on the downstream market; and, thirdly, refusal shall
most likely damage consumers”25.
53. It is humbly submitted that (i) Brillante has merely made a request to renegotiate their
contracts with certain manufacturers. Brillante has not denied access to their technology
and by virtue of requesting renegotiation has indicated that it intends to keep it’s
technology open to these manufacturers. (ii) As the AI technology is still being licensed
to the manufacturers their ability to compete in the downstream market has not been
unfairly affected. Additionally there is no proof that increasing the licensing fee by
around 25% will eliminate competition in the market. (iii) Lastly, Brillante has not
refused access to its technology and thus there is no proof that its actions have a
propensity to harm the final consumer.

23
THE COMPETITION ACT, 2002, § 3(5), No. 12 ACT OF PARLIAMENT 2003(INDIA).
24
Case No. 15 of 2018 CCI.
25
Case No. 30 of 2019 CCI.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|24
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

54. Vigorous innovational competition is the backbone of development. Companies must

be incentivised to research, experiment, and invest in new technologies that benefit the
entirety of the market as well as society at large26. Penalising Brillante for simply
utilising the fruits of its hard-earned labour would set a harmful precedent in
disincentivising and putting of other companies from developing similar pathbreaking
technologies due to fear of being penalised for their success. Other chip manufacturers
will be reluctant to similarly invest in new technologies. Thus, penalising Brilliante
would create a phobia of innovation where players are weary of investing and taking
risks, causing an extremely adverse effect on competition.
55. It is humbly submitted that Brillante has merely requested to renegotiate its licensing
fees at an increase of around 25%27 is a reasonable exercise of its patented intellectual
property. Such increases in value of contracts over time are standard practice within the
industry. It is humbly submitted that as Ruritania is a free market economy it is only
just that Brillante is rewarded for their effort and investment in developing such an AI
technology.

IV. B. BRILLANTE DOES NOT ENJOY A DOMINANT POSITION IN THE MARKET

56. It is humbly submitted that Brillante cannot be found to have unlawfully engaged in
refusal to deal as Brillante does not enjoy a dominant position in the market. The CCR
has found, as per its prima facie findings, that Brillante does not enjoy a dominant
position in the market.
57. In order to constitute a refusal to deal which has the possibility of having an appreciable
adverse effect on the market it is necessary for an abuse of dominance to exist. As
established in the Air Works case, the mere existence of a refusal to deal can is not
necessarily anticompetitive. In the instant situation as Brillante does not possess
dominance in the market no wrong under 3(1) can have been committed.
58. It is humbly submitted that Brillante’s technology is not essential to compete in the
market as is seen with Atlas Dome Technologies Ltd., a Ruritarian defence technology

26
Douglas H. Ginsburg, Antitrust, Uncertainty, and Technological Innovation, 15 J. Reprints Antitrust L. &
ECON. 389 (1985).
27
Para 7, Moot Proposition CCI-HNLU 12TH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
COMPETITION, 2020.
~~MEMORANDUM ON THE BEHALF OF APPELLANT~~
Page|25
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

company specialising in providing solutions in the air defence sector, including

manufacturing of chips used in this sector. Atlas Dome technologies manufacture their
chips without use of Brillante’s technology. This clearly indicates that there are
alternative means of manufacturing such chips. Thus it can’t be said that Brillante
requesting to raise licensing fees by 25% will result in adverse economic consequences
in the downstream market.
59. The principle a dominant position is necessary in order for a refusal to deal to become
anticompetitive has also been recognised by other competition regimes as is the case in
the European Union. Article 82 of the Treaty on the Functioning of the European
Union28 covers refusal to deal as a form of abuse of dominance. The essential condition
for the application of Article 82 is that the enterprise from whom supply is requested
must enjoy substantial market power in the market for the refused input29.
60. The CCI did not examine accusations of vexatious litigation against ABB in
Technologies Private Limited v. ABB India Limited30. If ABB did not have dominance
in the relevant market, the CCI concluded that there was no basis to investigate 'abuse'
of dominance. Similarly, It is humbly submitted that in the absence of dominance in the
instant case there can be no abuse of dominance.
61. In Big Tree Entertainment & Vista Entertainment v. Justickets Private Limited31 The
CCI concluded that a reasonable delay in licensing may not be considered a denial of
market access. It is humbly submitted that Brillante as a business has the right to
safeguard its own commercial interests. Such delays are a natural part of decision
making in a business. It is important for Brillante as a company to deliberate carefully
over all of it’s important decisions that may have serious financial ramifications for the
company. It is humbly submitted that the mere fact that Brillante chooses to carefully
and methodically plan it’s business decisions can’t be viewed as evidence of
cartelisation.

28
Article 82(exArticle 31 TEU).
29
Organisation for Economic Co-operation and Development - Directorate for Financial and Enterprise Affairs
Competition Committee, Note from the European Commission to the Competition Committee for discussion.
DAF/COMP/WD(2007)10, ¶13.
30
Case No. 12 of 2016 CCI.
31
Case No. 08 of 2016 CCI.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|26
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

62. Thus it is humbly submitted that Brillante has reasonably exercised rights over its
intellectual property and has not committed any abuse of dominance. It is humbly
submitted that the actions of Brillante have fallen squarely within the ambit of the law.

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|27
 CCI-HNLU 12 JUSTICE HIDAYATULLAH NATIONAL MOOT COURT
TH

COMPETITION 2020

PRAYER

Therefore, it is prayed, in light of the issues raised, arguments advanced and authorities cited,
that this Honourable Tribunal may be pleased to adjudge and declare that:

i.Roark was not required to have notified its acquisition of Brillante and the CCR was not correct
in finding so.

ii.Roark had a right to have its lawyer present during the dawn raid and deposition, and the dawn
raid conducted by CCR officials was ultra vires to the act.

iii.CCR was not correct in penalising Roark for exchange of information/ cartelisation.

iv.Brillante had not engaged in refusal to deal and the CCR was wrong in finding so.

And/ Or

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interest of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Petitioners Shall Duty Bound Forever Pray.

Sd/-

COUNSEL FOR THE APPELLANTS

~~MEMORANDUM ON THE BEHALF OF APPELLANT~~

Page|28