Before: EAM ODE

TEAM CODE – T 11
CCI-HNLU XIITH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT

COMPETITION, 2022
Before
COMPETITION APPELLATE TRIBUNAL, RURITANIA
FILED UNDER SECTION 3, 5 & 6 OF THE COMPETITION ACT, 2002
IN THE MATTER BETWEEN:
ROARK INDUSTRIES INC. (ROARK)……………………………………………..PETITIONER
V.
COMPETITION COMMISSION OF RURITANIA………………………………………RESPONDENT

COMPETITION, 2022
MEMORIAL for RESPONDENT
PAGE | 2
MEMORIAL for RESPONDENT TABLE OF CONTENTS
COMPETITION, 2022
TABLE OF CONTENTS
TABLE OF CONTENTS.........................................................................................................I
LIST OF AUTHORITIES....................................................................................................III
LIST OF ABBREVIATIONS............................................................................................VIII
STATEMENT OF JURISDICTION...................................................................................IX
STATEMENT OF FACTS.....................................................................................................X
ISSUES RAISED..................................................................................................................XII
SUMMARY OF ARGUMENTS.......................................................................................XIII
ARGUMENTS ADVANCED..................................................................................................1
ISSUE A: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS

REQUIRED TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE?.............1
I. The acquisition is a notifiable combination....................................................................1
II. The acquisition will not be covered under the De Minimis exemption........................2
ISSUE B: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

DURING THE DAWN RAID AND DEPOSITION?.......................................................4
I. The dawn raid conducted was legal and proportionate in nature...................................5
II. The decision to conduct a dawn raid at Roark official premises had a legitimate
purpose...............................................................................................................................6
III. There is no statutory right for the lawyers to be present during the deposition..........7
ISSUE C: WAS THE CCR CORRECT IN PENALISING ROARK FOR

EXCHANGE OF INFORMATION/CARTELISATION?...............................................9
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COMPETITION, 2022
I. The formed cartel has caused AAEC in the market.....................................................10
II. The circumstantial evidence should be relied upon to prove AAEC..........................14
ISSUE 4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD

ENGAGED IN REFUSAL TO DEAL?...........................................................................16
I. Brillante had engaged in refusal as its customers were not being able to obtain
adequate supplies of a product on usual trade terms........................................................16
II. Charging excessive prices may also amount to refusal to deal...................................18
PRAYER FOR RELIEF........................................................................................................20
PAGE | II
COMPETITION, 2022
LIST OF AUTHORITIES
Cases
ATO (I) Limited and Ors. v. Gandhmardhan Sponge Industries Private Limited.....................3
Intellect Design Arena Limited v. Competition Commission of India.......................................2
Jignesh Kishorbhai Bhajiawala v. State of Gujarat..................................................................9
N.K. Bajpai v. Union of India....................................................................................................7
Poolpandi v. Superintendent, Central Excise............................................................................8
Rajasthan Cylinders and Containers Limited v. Union of India..............................................13
Re All India Organisation of Chemists & Druggists and Raptakos Brett & Co Ltd...............19
Re Bombay Cotton Waste Merchants Association...................................................................19
Re Rajasthan Chemists Association.........................................................................................19
Re Rajasthan Fine Chemicals Stockists Association...............................................................19
Re Travel Agents Association of India Ltd and British Airways,............................................19
Sodhi Transport Co v. State of Uttar Pradesh.........................................................................12
Competition Appellate Tribunal Cases
All India Tyres Dealers Federation v. Tyre Manufacturers....................................................14
Builders Association of India v. Cement Manufactures Association.......................................15
Escorts Limited & Ors v. CCI & Ors.......................................................................................14
M/s International Cylinder (P) Ltd v. CCI...............................................................................15
Re Aluminium Phosphide Tablets Manufacture......................................................................15
Shri Shamsher Kataria v. Honda Sie.......................................................................................17

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MEMORIAL for RESPONDENT INDEX OF AUTHORITIES
COMPETITION, 2022
Competition Commission of India
Builders Association of India v. Cement Manufacturers Association.....................................12
Competition Commission of India v. Steel Authority of India...................................................8
Consumer Online Foundation v. Tata Sky Ltd.........................................................................15
Excel Corp Care v. Competition Commission of India......................................................14, 15
Intellect Design Arena Limited v. Competition Commission of India.......................................2
JFE Engineering v. Commission..............................................................................................15
Kapoor Glass Pvt Ltd v. Schott Glass India Pvt Ltd................................................................17
Re Andhra Pradesh Paper Mills Ltd........................................................................................17
Re Cartelisation in Industrial and Automotive Bearings Suo Motu........................................12
Re Masvi Fabrics v. Arvind Mills Ltd......................................................................................17
Re Nalli Silk Traders................................................................................................................18
Re Text Messaging Antitrust Litigation...................................................................................15
South Asia LPG Company Ltd. v. Competition Commission of India.......................................8
South Eastern Railway West Bengal v. Hindustan Composites Ltd........................................13
US UK and EU Cases
AG v. Commission of the European Communities.....................................................................6
Dow Benelux v. Commission of the European Communities.....................................................5
France Télécom SA v. Commission of the European Communities...........................................5
Hoechst AG v. Commission of the European Communities.......................................................5
National Panasonic v. Commission of the European Communities..........................................6
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COMPETITION, 2022
Northern Pacific R Co v. United States...................................................................................12
The Queen v. Minister of Agriculture, Fisheries and Food, ex parte: Fedesa and Ors............6
United States v. Coalgate and Co............................................................................................17
United States v. Ventresca.........................................................................................................6
Verizon Communication Inc v. Law Offices of Curtis V. Trinko.............................................11
Statutes
Competition Act 2001, § 43(A).................................................................................................2
INDIA CONST. art 20, cl 3.......................................................................................................8
INDIA CONST. art 21...............................................................................................................9
The Advocates Act 1961, § 30...............................................................................................4, 7
The Companies Act 2013, § 220................................................................................................5
The Competition Act 2002, § 19(3).........................................................................................12
The Competition Act 2002, § 2(h)...........................................................................................10
The Competition Act 2002, § 26(1)...........................................................................................8
The Competition Act 2002, § 27(b).........................................................................................13
The Competition Act 2002, § 3................................................................................................10
The Competition Act 2002, § 3(4)(d)......................................................................................17
The Competition Act 2002, § 35............................................................................................4, 8
The Competition Act 2002, § 41................................................................................................5
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COMPETITION, 2022
The Competition Act 2002, § 42A...........................................................................................14
The Competition Act 2002, § 5(a).............................................................................................1
The Competition Act 2002, § 6(2).............................................................................................1
The Competition Act 2002, Preamble, No. 12.........................................................................10
Regulations
FTC Coverage Rules, 16 C.F.R., § 801.11 (2014).....................................................................4
Ministry of Corporate Affairs, S.O. 2039(E) (Notified on 29 June 2017).................................2
Ministry of Corporate Affairs, S.O. 988(E) (Notified on 27 March 2017)................................2
The Competition Act, R.S.C. 1985, c. C-34, § 109(1)(b) (Can.)...............................................4
Books
AHARON BARAK, PROPORTIONALITY – CONSTITUTIONAL RIGHTS AND THEIR

LIMITATIONS 305 (Cambridge University Press, 2012)....................................................7
HELENE ANDERSSON, DAWN RAIDS UNDER CHALLENGE: DUE PROCESS

ASPECTS ON THE EUROPEAN COMMISSION'S DAWN RAID PRACTICES 238 (1st
edn, Hart Publishing, 2018)...................................................................................................5
ONLINE REPORTS, GUIDELINES & JOURNALS
Competition Commission of India, Frequently Asked Questions relating to combinations,

http://www.cci.gov.in/sites/default/files/whats_newdocument/FAQ
%27s_Combinations.pdf........................................................................................................2
Organization for Economic Co-operation and Development, Recommendation of the Council

Concerning Effective Action against Hard Core Cartels, C (98)35/FINAL (1998)............10
PSA, Anti-Competitive Agreements: Tests And Tribulation (Mondaq, 11 July 2013)

https://www.mondaq.com/india/trade-regulation-practices/250048/anti-competitive-
agreements-tests-and-tribulation..........................................................................................11
PAGE | VI
COMPETITION, 2022
Roundtable on Refusals to Deal, Directorate for Finance and Enterprise Affairs, ¶ 6,
DAF/COMP/WD(2007)100
http://ec.europa.eu/competition/international/multilateral/2007_oct_ refusals_to_deal.pdf.
..............................................................................................................................................17
OTHER REFERENCE BOOKS
SM DUGAR, GUIDE TO COMPETITION ACT 2002 (LexisNexis 2019)
JONATHON FAULL AND ALI NIKPAY, THE EC LAW OF COMPETITION (Oxford

1999)
VAN BAEL & BELLIS, COMPETITION LAW OF THE EUROPEAN COMMUNITY

(Competition Law of The European Community 2010)
COMPETITION LAW MANUAL (Taxmann 2017)
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (Oxford 2018 )
ARIEL EZRACHI, EU COMPETITION LAW (Hart Publications 2016)
COMPETITION LAW IN INDIA, ABIR ROY AND JAYANT KUMAR (Eastern Law
House 2014)
ALISON JONES AND BRENDA SUFRIN (Oxford 2019)
RICHARD WHISH AND DAVID BAILEY, COMPETITION LAW (Oxford 2018)
GARY MIDDLETON AND BARRY J. RODGER, CASES AND MATERIAL ON UK

AND EC COMPETITION LAW
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (Oxford 1985)
SANDRA MARCO COLINO, VERTICAL AGREEMENT AND COMPETITION LAW

(Hart Publishing 2011)
T RAMAPPA, COMPETITION LAW IN INDIA: POLICY, ISSUES, AND

DEVELOPMENT (Oxford 2006)
PAGE | VII
COMPETITION, 2022
LIST OF ABBREVIATIONS
ABBREVIATIONS EXPANSION
& And
¶ Paragraph
§ Section
AAEC Appreciable Adverse Effect on Competition
AIR All India Reporter
Anr. Another
Art. Article
CCR Competition Commission of Ruritania
CCI Competition Commission of India
Comp. Competition
DG Director General
ECJ European Court of Justice
EC European Commission
EU European Union
Hon’ble Honorable
i.e., That is
Inc. Incorporation
IPR Intellectual Property Rights
Ltd. Limited
MFN Most Favored Nation
NCLAT National Company Law Appellate Tribunal
NCLT National Company Law Tribunal
Ors. Others
Pvt. Private
SC Supreme Court
SCC Supreme Court Cases
u/s Under Section
v. Versus
PAGE | VIII
MEMORIAL for RESPONDENT INDEX OF ABBREVIATIONS
COMPETITION, 2022
STATEMENT OF JURISDICTION
In the present appeal under Section 3, 5 and 6 of the Ruritanian Competition Act, 2002
concerning the matter of Roark Industries Inc. (Roark) v. Competition Commission of
Ruritania, the Respondent humbly submits to the Jurisdiction of this Hon’ble Tribunal.
The present memorandum sets forth the facts, contentions, and arguments in the
present case.
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MEMORIAL for RESPONDENT STATEMENT OF JURISDICTION
COMPETITION, 2022
STATEMENT OF FACTS
THE PARTIES
Roark Industries Inc. (Roark) is a U.S.A. based multi-national conglomerate, producing

products across sectors, including the manufacturing of chips used in antiballistic missiles
and other air defence systems.
Brillante Technologies Private Limited (Brillante) is a company that has made pathbreaking
innovations in Artificial Intelligence (AI), with applications in various industrial processes.
In particular, Brillante developed a patented AI technology with pathbreaking applications in
chip manufacturing, perceived to be years ahead of other such technologies.
Atlas Dome Technologies Ltd. (Atlas) is a Ruritanian defence technology company,

specialising in providing solutions in the air defence sector, including manufacturing of chips
used in this sector.
GENZ Pvt. Ltd (GENZ) is a chip manufacturing industry established in Ruritania.
THE DAWN RAID
In March 2021, Roark completed its acquisition of Brillante including its subsidiary in
Ruritania and shortly after Roark’s acquisition of Brillante, 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 by
prominent players in the chip manufacturing industry, including Roark. Roark’s lawyers were
denied entry by CCR, and Roark’s top employees were deposed.
ALLEGED CARTELIZATION/EXCHANGE OF INFORMATION
During the course of deposition, it was stated by Roark CEO that Roark had shared certain
information relating to pricing strategy and customer retention policies, with GENZ Pvt. Ltd.
It was also found out that Roark is a minority shareholder in GENZ, holding 9.5% of its
shareholding, along with a board seat. The Ruritanian CEO of Roark is also an independent
director of GENZ, although in his personal capacity.
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MEMORIAL for RESPONDENT STATEMENT OF FACTS
COMPETITION, 2022
The CCR also found a letter from one of Brillante’s employees to its compliance officer
suggesting that Roark had pressurised Brillante to provide MFN treatment to GENZ and to
share with GENZ the terms and conditions on which Brillante provides services to Roark.
Moreover, because of the dawn raid, the CCR was also made aware of Roark’s acquisition of
Brillante.
ALLEGED REFUSAL TO DEAL
During the dawn raid the CCR found several e-mails that suggested that post the acquisition
of Brillante by Roark, Brillante reached out to various competitors of Roark to renegotiate the
terms of use and license of its AI technology, asking them to increase the license fee by
approximately 25%. Some e-mails also suggested that Brillante was intentionally delaying
these negotiations and had asked Roark’s competitors to cease and desist from using its
technologies pending re-negotiations.
THE PRIMA FACIE ORDER
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. The CCR also issued show caused
notice to Roark asking why gun-jumping proceedings should not be initiated against it.
Relevant financial details of which were enclosed as Annexure 1.
During Investigation, although the CCR did not find Brillante to prima facie enjoy a
dominant position, it ordered the DG to investigate whether Brillante had engaged in refusal
to deal and upon receiving the DG’s reports, and upon hearing the submissions of the parties,
the CCR decided to pass an order making the following observations:
a. The direct and indirect exchange of information on pricing trends and strategy between
Roark and GENZ amounted to cartelisation.
b. By insisting on a change in terms of the terms of use and license of its AI technology, and
intentionally delaying negotiations, Brillante had engaged in a refusal to deal with
competitors of Roark.
c. CCR officials did not err by conducting depositions in the absence of Roark’s lawyers.
PAGE | XI
MEMORIAL for RESPONDENT STATEMENT OF FACTS
COMPETITION, 2022
ISSUES RAISED
ISSUE A:
WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED TO HAVE
NOTIFIED ITS ACQUISITION OF BRILLANTE?
ISSUE B:
DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT DURING THE
DAWN RAID AND DEPOSITION?
ISSUE C:
WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF

INFORMATION/ CARTELISATION?
ISSUE D:
WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN REFUSAL

TO DEAL?
PAGE | XII
MEMORIAL for [RESPONDENT] ISSUES RAISED
COMPETITION, 2022
SUMMARY OF ARGUMENTS
ISSUE A: THE CCR WAS CORRECT IN FINDING THAT ROARK WAS

REQUIRED TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE
It is humbly contented before the Hon’ble Competition Appellate Tribunal that the CCR was
correct in finding that Roark was required to have notified its acquisition of Brillante. It is
further submitted that the Transaction does not fall under De Minimis exemption, and the
Parties (acquirer and the acquired company) satisfy the jurisdictional threshold, as provided
in Section 5 of the Act. Accordingly, in terms of Sub-Section (2) of Section 6 of the Act,
Roark ought to have filed the notice regarding the combination with the Commission within
thirty days of the execution of the binding agreement. Hence, in this argument, it is submitted
that: (I) that the acquisition of Brillante by Roark is a notifiable combination (II) the turnover
of Brillante Ruritania, relying on its consolidated financial statements, does not fall within the
limit for it to be exempted under the De Minimis exemption.
ISSUE B: ROARK HAS A RIGHT TO HAVE ITS LAWYER PRESENT DURING

THE DAWN RAID AND DEPOSITION
It is humbly submitted before the Hon’ble Competition Appellate Tribunal that the dawn raid
conducted by the DG was legal and proportionate in nature and Roark does not have the right
to present its lawyer during the dawn raid as there is no right to legal counsel during
questioning by the investigator and it is contended that the right to practice under Section 30
of the Advocates Act, 1961 is not unqualified and it may be restricted by law for the time
being in force. Moreover, it is contended that the Act impliedly prohibits advocates from
appearing before the DG in as much as Section 35 of the Act as well as the Competition
Commission of India (General) Regulations, 2009 specifically provide for representation by a
legal representative before the Commission; however, no such stipulation was made for
representation before the DG or CCR during investigations.
ISSUE C: THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF

INFORMATION/CARTELISATION
It is humbly submitted before the Hon’ble Competition Appellate Tribunal that the penalty
imposed by the CCR is justified as Cartel is a horizontal agreement prohibited u/s 3 of the
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MEMORIAL for [RESPONDENT] SUMMARY OF ARGUMENTS
COMPETITION, 2022
Competition Act, 2002 which is detrimental to the interests of the consumers and other
competitors and the agreement between Roark and GENZ is a horizontal agreement as it
satisfies all conditions of the horizontal agreement that it is an association of enterprises
concerning identical goods and services. Secondly, the existence of AAEC in the market
because of this cartel is proved by the application of the “per se” rule and reliance on
circumstantial evidence on record. Penalizing the appellant as a deterrence measure to
prevent such practices to exist in the market in future.
ISSUE D: CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN

REFUSAL TO DEAL
It is humbly submitted before the Hon’ble Competition Appellate Tribunal that the CCR was
correct in finding that Brillante had engaged in refusal to deal as it satisfied the requirements
for the application of the provision on refusal to deal under Section 3(4)(d) of the
Competition Act. It was very evidently shown that there was a lack of competition among
suppliers and refusal will cause an adverse effect on competition as its customers are unable
to carry on business because of not being able to obtain adequate supplies of a product on
usual trade terms. Moreover, by charging excessive pricing Brillante constitute a more subtle
form of refusal to sell since its aim was either to put a customer in a position where he is
unable to place an order or to postpone without valid reason the execution of an order.
PAGE | XIV
MEMORIAL for [RESPONDENT] SUMMARY OF ARGUMENTS
COMPETITION, 2022
ARGUMENTS ADVANCED
ISSUE A: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED TO HAVE
NOTIFIED ITS ACQUISITION OF BRILLANTE?
[¶1] It is humbly contented before the Hon’ble Competition Appellate Tribunal that the
CCR was correct in finding that Roark was required to have notified its acquisition of
Brillante. It is further submitted that prima facie the Transaction does not fall under De
Minimis exemption, and the Parties (acquirer and the acquired company) satisfy the
jurisdictional threshold, as provided in Section 5 of the Act. Accordingly, in terms of Sub-
Section (2) 1
of Section 6 of the Act, Roark ought to have filed the notice regarding the
combination with the Commission within thirty days of the execution of the binding
agreement. Hence, in this argument, it is submitted that: (I) that the acquisition of
Brillante by Roark is a notifiable combination (II) the turnover2 of Brillante Ruritania, relying
on its consolidated financial statements, does not fall within the limit for it to be exempted
under the De Minimis exemption.
I. The acquisition is a notifiable combination
[¶2] It is contended that jurisdictional thresholds for a combination beyond which the
Commission is required to be notified, have been breached by the acquisition of Brillante by
Roark. Section 5(a) of the Competition Act, 20023 (“the Act”) lays down the thresholds for an
acquisition to be considered a combination as the acquirer and the target enterprise must
jointly have, with regards to the turnover, either in India a turnover of more than rupees three
thousand crores; or in India or outside India, a turnover of more than fifteen hundred million
US dollars, including at least rupees fifteen hundred crores in India. Now, Roark’s financial
figures would itself cross-jurisdictional thresholds.4 The Hon'ble Tribunal may examine that
Brillante group’s turnover5 on being combined with that of Roark would anyway breach the
relevant threshold. Hence, the joint turnover of Brillante and Roark would meet the
jurisdictional thresholds as laid down under Section 5(a), for this acquisition to be notifiable.
1
The Competition Act 2002, § 6(2), No. 12, Acts of Parliament, 2002 (India).
2
Clarification, ¶ 2.
3
The Competition Act 2002, § 5(a), No. 12, Acts of Parliament, 2002 (India).
4
Clarification, ¶ 29.
5
Moot Proposition, Annexure 1, Table I.
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MEMORIAL for RESPONDENT ARGUMENTS ADVANCED
COMPETITION, 2022
[¶3] In the present case, the Tribunal may examine the legality of the contention to
notify CCR under Sub-Section (2) of Section 6 of the Act which makes it mandatory practice
for an enterprise which proposes to enter into a combination to give notice to the Competition
Commission providing details of the proposed combination within 30 days of approval of the
proposal relating to the combination (later relaxed).6 In Intellect Design Arena Limited v.
Competition Commission of India,7 it was observed that ,8 it was observed that by virtue of
the statute, it is clear that regardless of whether there is an appreciable adverse effect on
Competition in India or not, it is mandatory to notify a combination to the Commission. This
implies that each combination needs to be notified under the above-mentioned provision.
Filing a notice for a combination that meets jurisdictional thresholds is mandatory under
Section 6(2) of the Act.9
[¶4] Given the above, it is humbly submitted that Roark has failed to give notice of the
combination under sub-Section (2) of Section 6 of the Act and has consummated the same. In
addition, it is submitted that this failure to give notice per sub-Section (2) of Section 6 of the
Act attracts penalties under Section 43A10 of the Act.11
II. The acquisition will not be covered under the De Minimis exemption
[¶1] It is contended that the acquisition of Brillante will not be covered under the De
Minimis Exemption. It is submitted that the turnover of Brillante Ruritania exceeds the De
Minimis Exemption threshold 12
therefore the said transaction becomes a notifiable
combination. We refer to notification S.O. 988(E). dated 27.03.2017 issued by the Ministry
of Corporate Affairs, India (“Target Exemption Notification"), which exempts the enterprises
which are parties to an acquisition where the target company has a turnover of not more than
rupees one thousand crore in India. 13
The notification specifically mentions turnover “in
India”. 14
The notification specifically mentions turnover “in India”. It is contended that the
interpretation of the phrase “in India” when it comes to turnover be made with respect to
6
Ministry of Corporate Affairs, S.O. 2039(E) (Notified on 29 June 2017).
7
Intellect Design Arena Limited v. Competition Commission of India, 2018 SCC OnLine CCI 36, ¶ 12.
8
9
Competition Commission of India, Frequently Asked Questions relating to combinations,
http://www.cci.gov.in/sites/default/files/whats_newdocument/FAQ%27s_Combinations.pdf.
10
Competition Act 2001, § 43(A), No. 12, Acts of Parliament, 2002 (India).
11
12
Ministry of Corporate Affairs, S.O. 988(E) (Notified on 27 March 2017).
13
Id.
14
Id.
PAGE | 2
COMPETITION, 2022
Section 5 of the Act.
[¶2] Section 2(y) of the Act, 15

“turnover” includes “values of the sale of goods or
services”. The definition of turnover under the Act does not provide that turnover as
calculated for a particular geographical Section, at the discretion of the enterprise concerned,
is to be considered as turnover with regards to Section 5 of the Act.
[¶3] The explanation to Section 5(c) of the Act provides that the value of assets shall be
determined by taking into consideration the book value of the assets as in the audited books
of account of the enterprise in the financial year just before the year in which the merger
takes place. 16
CCI has always been clear on this process of calculating the turnover for the
purposes of the relevant Section of the Act as it has reiterated that the value of turnover is
determined by considering the book value of assets shown in the audited books of accounts of
the enterprise. 17
[¶4] Additionally, the concept of this decisional practice was brought into notice by
CCI in the case of Intellect Design Arena Limited v. Competition Commission of India18 while
interpreting the words ‘in India’ for turnover. This is to say that the Competition commission
interpreted ‘turnover in India’ to include the book value of assets of the company i.e., the
consolidated financial statements.
[¶5] In ATO (I) Limited and Ors. v. Gandhmardhan Sponge Industries Private Limited,
the CCI observed that “…Thus, in the event Company's total revenue; based on its
consolidated financial statement (i.e., consolidating financial statements of all companies
over which Company exercises control) ....”,19 which clearly reflects the relevant procedure to
calculate the turnover/revenue.20
[¶6] Thus, it is contended that “turnover in India” as mentioned in the notification

cannot consider only turnover reported in a particular geographical area, without taking into
account the revenue of Brillante Specialties Inc. even though it operates outside India.
15
The Competition Act 2002, § 2(y), No. 12, Acts of Parliament, 2002 (India).
16
The Competition Act 2002, § 5(c), explanation (c), No. 12, Acts of Parliament, 2002 (India).
17
Supra note 7 at ¶ 5.
18
Supra note 6 at ¶ 9.2.
19
ATO (I) Limited and Ors. v. Gandhmardhan Sponge Industries Private Limited, MANU/NCLT/0539/2021, 42
(India).
20
Supra note 2.
PAGE | 3
COMPETITION, 2022
[¶7] The American regulations21 which state that the annual total assets and net sales of
a person shall include all his net sales and assets regardless of the fact that those are foreign
or domestic shall be examined to get more clarity concerning the calculation of turnover in a
country. Similarly, the Canadian statute22 with regards to notifiable combinations states, “….
had gross revenues from sales in, from or into Canada….” The phrase “from or into Canada”
provides clarity as to the nature of turnover to be measured against the jurisdictional
thresholds i.e., sales made both out of the country as well as domestically.
[¶8] Thus, it is humbly submitted that the consolidated financials of Brillante Ruritania-
books of accounts of Brillante Ruritania, which includes revenue of Brillante Specialties Inc.,
must be taken into account. Accordingly, the value of turnover is taken into consideration as
provided in the books of accounts of the enterprise concerned. In the present case, the
turnover of Brillante, including its subsidiary Brillante Specialties happens to be 1080
crores,23 which is clearly above the threshold required for De Minimis exemption. Thus, it is
submitted that based on the book value, turnover of Brillante Ruritania exceeds the De
Minims Exemption threshold applicable at that point of time and therefore the said
combination becomes a notifiable transaction.
21
FTC Coverage Rules, 16 C.F.R., § 801.11 (2014).
22
The Competition Act, R.S.C. 1985, c. C-34, § 109(1)(b) (Can.).
23
Moot Proposition, Annexure 1, Table III.
PAGE | 4
COMPETITION, 2022
ISSUE B: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

DURING THE DAWN RAID AND DEPOSITION?
[¶9] It is humbly submitted before the Tribunal that the dawn raid conducted by the DG
was legal and proportionate in nature and Roark does not have the right to have its lawyer
present during the dawn raid as there is no right to legal counsel during questioning by the
investigator and it is contended that the right to practice under Section 30 of the Advocates
Act, 196124 is not unqualified and it may be restricted by law for the time being in force.
Moreover, it is contended that the Act impliedly prohibits advocates from appearing before
the DG as Section 3525 of the Act as well as the Competition Commission of India (General)
Regulations, 2009 specifically provide for representation by a legal representative before the
Commission; however, no such stipulation was made for representation before the DG or
CCR during investigations.
I. The dawn raid conducted was legal and proportionate in nature.
[ ¶ 10 ] It is submitted that the dawn raid conducted by the DG was legal and proportionate
in nature and in support of its defence, the Respondent puts forward the following pleas in
law; Firstly, the measure adopted had a legal basis and was, therefore, not arbitrary.
Secondly, the decision to conduct a dawn raid at Roark official premises had a legitimate
purpose and thirdly, during the dawn raid all procedural safeguards have been adhered to by
the officials from the CCR.
[ ¶ 11 ] By virtue of Section 220 of the Companies Act 26 read with Section 41 of the
Competition Act, 27
the DG or CCR has the power to conduct a search and seizure operation
after obtaining necessary permissions. Courts in mature Competition law jurisdictions such as
the European Union have read search and seizure powers available to the Commission in
broad terms.28 In order to establish that an inspection is justified, the Commission is required
to show in the inspection decision, in a properly substantiated manner, that it is in possession
of information and evidence providing reasonable grounds for suspecting the infringement of
24
The Advocates Act 1961, § 30, No. 25, Acts of Parliament, 2002 (India).
25
The Competition Act 2002, § 35, No. 12, Acts of Parliament, 2002 (India).
26
The Companies Act 2013, § 220, No. 18, Acts of Parliament, 2013 (India).
27
28
C-85/87 Dow Benelux v. Commission of the European Communities EU:C:1989:379; C-46/87 and 227/88
Hoechst AG v. Commission of the European Communities EU:C:1989:337.
PAGE | 5
COMPETITION, 2022
which the undertaking subject to the inspection is suspected.29
[ ¶ 12 ] The Commission must have a reason to believe that it will find evidence that is not
only connected to the putative infringement but will also help the Commission to prove its
existence.30 In most cases, such information is only likely to be found at the premises of those
suspected of wrongdoing. A similar requirement has been provided under Indian legal
system.31
[ ¶ 13 ] Even under the probable cause requirement which is used to determine the legality
of search and seizure operations in the United States, courts have held that if the apparent
facts set out in the affidavit are such that a reasonably discreet and prudent man would be led
to believe that there was a commission of the offence charged, there is probable cause
justifying the raid. 32
[ ¶ 14 ] Drawing a direct parallel to the case at hand, it is submitted that the dawn raid
conducted by the CCR was not arbitrary in nature and had a legal basis as it was based on
reasonable suspicion of infringement of Competition law by Roark as CCR possessed
detailed information regarding collusive activity in the relevant market when it received a
reference from the Ruritanian Ministry of Commerce, regarding alleged cartelization and
anticompetitive conduct by prominent players in the chip manufacturing industry, including
Roark.33
II. The decision to conduct a dawn raid at Roark official premises had a legitimate
purpose.
[ ¶ 15 ] It is submitted that the decision to conduct a dawn raid at Roark’s official premises
was proportionate in nature as it pursued a legitimate purpose. An inspection with the sole
aim of gathering evidence of an infringement of Anti-Trust provisions is considered to be
proportionate stricto sensu.34 In Fedesa case, the Court declared that for a measure to be
considered proportionate, there must be a legitimate aim, the measure shall be both
29
T-340/04, France Télécom SA v. Commission of the European Communities, EU:T:2007.
30
HELENE ANDERSSON, DAWN RAIDS UNDER CHALLENGE: DUE PROCESS ASPECTS ON THE
EUROPEAN COMMISSION'S DAWN RAID PRACTICES 238 (1st edn, Hart Publishing, 2018).
31
The Companies Act 2013, § 220, No. 18, Acts of Parliament, 2013 (India).
32
United States v. Ventresca, 380 U.S. 102, 108–09 (1965).
33
Moot Proposition, ¶ 7.
34
C-136/79, National Panasonic v. Commission of the European Communities, EU:C:1980:169.
PAGE | 6
COMPETITION, 2022
appropriate and necessary to achieve such aim.35
(a) The measure had a legitimate aim.
[ ¶ 16 ] The aim of the dawn raid conducted by the CCR in the instant case was to gather
evidence pertaining to the infringements, involved in the collusion and thereby fulfil its duty
of detecting and preventing anti-competitive behaviour by players in the relevant market.
This objective qualifies as ‘proper purpose’ or legitimate aim.36
(b) The measure adopted was appropriate and necessary.
[ ¶ 17 ] In determining the appropriateness of a measure, the court must determine whether

there is a rational connection between the challenged measure and the proper purpose – that
whether the means chosen to achieve the proper purpose can actually realize or advance the
purpose in question. There is no requirement that the means chosen are the only ones
available and capable of realizing the purpose in question, or that they fully realize the
purpose. A partial realization of the purpose, provided that it is not negligible or marginal,
satisfies the suitability test.37
[ ¶ 18 ] Drawing a direct parallel to the case at hand, it is submitted that the decision to
conduct a dawn raid was appropriate and necessary. The dawn raid had the potential of and
did, in fact, fulfil its purpose of detecting Competition law infringements. The dawn raid
conducted by the CCR found out that the Ruritanian CEO of Roark had shared certain
information relating to pricing strategy and customer retention policies, with GENZ Pvt Ltd
(GENZ)38 moreover the CCR also found a letter from one of Brillante’s employees to its
compliance officer suggesting that Roark had pressurised Brillante to provide MFN treatment
to GENZ and also to share with GENZ the terms and conditions on which Brillante provides
services to Roark.39
III. There is no statutory right for the lawyers to be present during the deposition.
35
C-331/88, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte: Fedesa and Ors,
EU:C:1990:391.
36
C-46/87 and 227/88, AG v. Commission of the European Communities, EU:C:1989:337 [25].
37
AHARON BARAK, PROPORTIONALITY – CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS
305 (Cambridge University Press, 2012).
38
39
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COMPETITION, 2022
[ ¶ 19 ] The Supreme Court in N.K. Bajpai v. Union of India40 held:
“A bare reading of provisions clearly shows that this is a statutory right given to an advocate
to practice and an advocate alone is the person who can practice before the courts, tribunals,
authorities and persons. But this right is statutorily regulated by two conditions - one, that a -
person's name should be on the State rolls and second, that he should be permitted by the law
for the time being in force, to practice before any authority or person. Where the advocate
has a right to appear before an authority or a person, that right can be denied by a law that
may be framed by the competent Legislature. Thus, the right to practice is not an absolute
right which is free of restriction and is without any limitation.”
[ ¶ 20 ] On the strength of this decision, it is contended that the right to practice under
Section 30 of the Advocates Act, 196141 is not unqualified and it may be restricted “by law
for the time being in force.”
[ ¶ 21 ] Turning to the provisions of the Competition Act, it is contended that the Act
impliedly prohibits advocates from appearing before the DG in as much as Section 3542 of the
Act as well as the Competition Commission of India (General) Regulations, 2009 specifically
provide for representation by a legal representative before the Commission; however, no such
stipulation was made for representation before the DG or CCR during investigations.
[ ¶ 22 ] It is further contended that under Section 41(2) 43 of the Act, before the DG or
CCR, the stage is that of investigation and not an enquiry, the latter being adjudicatory in
nature through the decision of the Court in South Asia LPG Company Ltd. v. Competition
Commission of India,44 where this distinction was explained. It is contended that at the stage
of investigations being conducted by the DG or CCR, no person is indicted and hence the
right of representation by an advocate does not get triggered.
[ ¶ 23 ] Reliance is placed on the decision of the Supreme Court in Competition

Commission of India v. Steel Authority of India,45 to contend that the direction by the
Commission under Section 26(1)46 after the formation of a prima facie opinion is a direction
40
N.K. Bajpai v. Union of India, AIR 2012 SC 1310.
41
The Advocates Act 1961, § 30, No. 25, Acts of Parliament, 2002 (India).
42
43
44
South Asia LPG Company Ltd. v. Competition Commission of India, (2014) SCC Online Del 4502.
45
Competition Commission of India v. Steel Authority of India, (2010) 10 SCC 744.
46
PAGE | 8
COMPETITION, 2022
simpliciter, to the CCR to cause an investigation into the matter. Therefore, at this stage of
the investigation, the Respondent should not be vested with any consequence and
accordingly, its officials could not claim the right to be accompanied or represented by
advocates at this stage.
[ ¶ 24 ] Supreme Court in Poolpandi v. Superintendent, Central Excise,47 stated that during

enquiry or investigations, a person cannot as a matter of right insist on the presence of a
lawyer and as such not allowing the presence of an advocate would not amount to a violation
of Article 20(3)48 of the Constitution. It is contended that the purpose of an enquiry under the
Competition Act would get defeated if an advocate would accompany the person called for an
investigation, as it would become difficult to obtain full and accurate information.
[ ¶ 25 ] Moreover, Gujarat High Court in Jignesh Kishorbhai v. State of Gujarat, 49

held
that the Supreme Court's ruling in the matter of Poolpandi (above) makes it clear that when a
person is summoned for questioning by the authorities during an inquiry, he is not being
accused. As a result, he cannot claim that, because he may be charged in the future, he is
entitled to the presence of a counsel when he is questioned. In such a case, refusing to allow
the presence of a lawyer would not be a violation of Article 20(3), nor can it be said that
when a person is summoned from his home and interrogated in the customs office without the
assistance of a lawyer or his friends, his constitutional right under Article 21 is violated.
[ ¶ 26 ] It cannot be stated that asking someone who is accustomed to certain luxuries and
conveniences to come to the Department by himself to answer questions constitutes mental
torture. Thus, even if the 'just, fair, and reasonable test' were applied, the refusal to allow the
attendance of a counsel would not be considered a violation of Article 21. 50
[ ¶ 27 ] In the impugned case, during the raid and deposition by CCR it was the stage of
investigation therefore, the Respondent should not be vested with any consequence and
accordingly, its officials could not claim the right to be accompanied or represented by
advocates at this stage.
ISSUE C: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF
47
Poolpandi v. Superintendent, Central Excise, (1992) 3 SCC 259.
48
INDIA CONST. art 20, cl 3.
49
Jignesh Kishorbhai Bhajiawala v. State of Gujarat, 2017 Cri. L.J. 1760
50
INDIA CONST. art 21.
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COMPETITION, 2022
INFORMATION/CARTELISATION?
[ ¶ 28 ] It is humbly submitted before the Hon’ble Competition Appellate Tribunal that the
penalty imposed by the CCR is justified as Cartel is a horizontal agreement prohibited u/s 3
of the Competition Act, 2002 which is detrimental to the interests of the consumers and other
competitors and the agreement between Roark and GENZ is a horizontal agreement as it
satisfies all conditions of the horizontal agreement that it is an association of enterprises
concerning identical goods and services. Secondly, the existence of AAEC in the market
because of this cartel is proved by the application of the “per se” rule and reliance on
circumstantial evidence on record. Penalizing the appellant as a deterrence measure to
prevent such practices to exist in the market in future.
I. The formed cartel has caused AAEC in the market.
(a) Cartels act to the detriment of the consumers.
[ ¶ 29 ] Cartels can be best understood as “any anticompetitive concerted practice (or

arrangement), by competitors to fix prices, make rigged bids (collusive tenders), establish
output restrictions or quotas, or share or divide markets by allocating customers, suppliers,
territories or lines of commerce.” 51 Such arrangements act to the detriment of the consumers
and other competitors in the market and are presumed to have an appreciable effect on
competition. Consequently, they are prohibited as under the Competition Act, 2002. 52 The
factors which shall be taken into consideration while determining whether such adverse effect
exists have been set out in Section 19(3) of the Act.
[ ¶ 30 ] The Competition Act, 2002 is aimed at “preventing practices that have an adverse
effect on the competition, and to protect the interests of the consumer and to ensure fair trade
carried out by other participants in the market in India and for matters connected therewith
or incidental thereto”.53
[ ¶ 31 ] The basic premise behind the insertion of the provision concerning the anti-
competitive agreements in the Competition law of India is fostering competition so that the
51
Organization for Economic Co-operation and Development, Recommendation of the Council Concerning
Effective Action against Hard Core Cartels, C (98)35/FINAL (1998).
52
53
The Competition Act 2002, Preamble, No. 12, Acts of Parliament, 2002 (India).
PAGE | 10
COMPETITION, 2022
welfare and the interests of the consumers can be promoted. The whole concept of
appreciable adverse effect54 has been put under the head of subjective since it differs from
person to person.
[ ¶ 32 ] Cartels are agreements between enterprises55 (including an association of

enterprises) not to compete on price, product (including goods and services) or customers.
The purpose of a cartel is to raise prices above competitive levels, resulting in injury to
consumers and the economy. For the consumers, cartelization results in higher prices, poor
quality and less or no choice for goods or/and services. In the European Union, Mario Monti,
the former commissioner for Competition, once described cartels as “cancers on the open
market economy”, and the US Supreme Court has referred to cartels as “the supreme evil of
antitrust”. 56
[ ¶ 33 ] It is submitted that the agreement between Roark and GENZ is a cartel

arrangement that was formed with an intent to promote anti-competitive practices in the
market. The presence of plus factors like exchange of commercially sensitive information,
data regarding pricing, Customer retention policy and information regarding the terms and
conditions on which Brillante provides services to Roark has the potential to create an anti-
competitive atmosphere in the market.
[ ¶ 34 ] Given the above authorities, it can be inferred that this is detrimental to the
interests of the consumers as an agreement among the said parties may result in hiking prices,
limiting supply and choices to the consumers and may also lead to poor quality products
being manufactured in light of the reduced competition as both of them are leading
manufacturer in the Chip manufacturing industry because of which other entities like Atlas
Dome Technologies Ltd. (Atlas) have to suffer.
[ ¶ 35 ] The Hon’ble Tribunal is hereby requested to uphold the penalization imposed by

the Hon’ble Commission.
(b) “Per se” rule is applicable on horizontal agreements & alternatively provisions of
s.19(3) are also met.
54
55
The Competition Act 2002, § 2(h), No. 12, Acts of Parliament, 2002 (India).
56
Verizon Communication Inc v. Law Offices of Curtis V. Trinko, 540 U.S. 398 (2004).
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COMPETITION, 2022
[ ¶ 36 ] The agreements entered into by enterprises at the same stage of the production
chain for either fixing price or for limiting production for sharing markets are called
horizontal agreements. Cartels come under the purview of horizontal agreements. 57 It must be
understood that the Act does not specify the party on whom the burden of proof rests. As per
the Act, with an exception in the case of joint ventures, horizontal agreements that directly or
indirectly determine sale prices, allocate a geographical area of production, lead to big
rigging and limit or control production, supply, etc, “shall be presumed” to have an AAEC.58
This provision embodies the spirit of the “per se” rule of presumption. Thus, if the party
alleging the existence of a cartel can prove that an agreement entered into by the parties falls
under the purview of this Section, there shall be a rebuttable presumption 59 that there is an
AAEC.
[ ¶ 37 ] The “Per se” rule u/s 3(3) of the Act holds that certain agreements have such
predictable and pernicious anticompetitive effect and, such limited potential for pro-
competitive benefit, that they are deemed unlawful per se. 60 There is no further need to have
actual proof as to whether it has caused AAEC. It is submitted that the same principle is
followed by the European Commission and arises from the fact that certain types of
coordination between undertakings can be regarded, by their very nature, as being harmful to
the proper functioning of normal competition.
[ ¶ 38 ] The NCLAT in the case of Builders Association of India v. Cement Manufacturers

Association (Cement Cartel Case)61 held that ‘mere exchange’ of commercially sensitive
information can be treated as an anti-competitive practice under Section 3 of the Act. The
CCI however did conclude price parallelism and concerted action to fix price. The NCLAT
however did use the per se test.
[ ¶ 39 ] “It can therefore be seen that in case of agreements as listed in Section 3(3) of the
Act, once it is established that such an agreement exists, it will be presumed that the
agreement has an appreciable adverse effect on competition within India; the onus to rebut
57
PSA, Anti-Competitive Agreements: Tests And Tribulation (Mondaq, 11 July 2013)
https://www.mondaq.com/india/trade-regulation-practices/250048/anti-competitive-agreements-tests-and-
tribulation.
58
59
Sodhi Transport Co v. State of Uttar Pradesh, AIR 1986 SC 1099.
60
Northern Pacific R Co v. United States, 356 U.S. 1, 5(1958).
61
Builders Association of India v. Cement Manufacturers Association, 2016 SCC Online CCI 46.
PAGE | 12
COMPETITION, 2022
this presumption would lie upon the Opposite Parties. The parties may rebut the said
presumption in light of the factors enumerated in Section 19(3)62 of the Act.”
[ ¶ 40 ] In Re: Cartelisation in Industrial and Automotive Bearings (Automotive Bearings

Case)63 CCI found that five bearings manufacturers met to decide prices that were to be
quoted to original equipment manufacturers in the automotive bearings market. The fact that
parties met to decide the price revisions were considered sufficient by CCI to establish a
cartel violation.
[ ¶ 41 ] It is submitted that the agreement between Roark and GENZ is a horizontal

agreement as it satisfies all conditions of the horizontal agreement that it is an association of
enterprises concerning identical goods and services, the term agreement has been given a
wide ambit in order to include tacit agreements, such agreement can be inferred from the
conduct of the parties and multiple such pieces of evidence are gathered by way of plus
factors. Therefore, being a horizontal agreement, it shall be “presumed to have” an AAEC in
the market.
[ ¶ 42 ] Significantly, it must be noted that as per the case of Rajasthan Cylinders and
Containers Limited v. Union of India,64 the Commission is not required to further a case of
contravention u/s 19(3) when the ingredients of Section 3(3) have been adequately satisfied.
Therefore, it is humbly submitted that in the alternative of Section 3(3) contravention, the
appellant has led to AAEC as per the scheme of Section 19(3) of the Act.
[ ¶ 43 ] The agreement among the said parties infringes Section 19(3) as the cartel
arrangement of two of the Dominant players was intended to out the small manufacturers
from the market and also hinder competition by foreclosing new entry.
(c) S.3(1) of the act also prohibits agreements that are likely to cause AAEC.
[ ¶ 44 ] It was held by the CCI in South Eastern Railway West Bengal v. Hindustan
Composites Ltd.65 that, A bare reading of the provisions of Section 3(1) of the Act shows that
these provisions not only proscribe the agreements which cause AAEC but the same also
62
63
Re Cartelisation in Industrial and Automotive Bearings Suo Motu Case No. 05 of 2017.
64
Rajasthan Cylinders and Containers Limited v. Union of India, (2018) SCC OnLine SC 1718.
65
South Eastern Railway West Bengal v. Hindustan Composites Ltd, 2020 SCC OnLine CCI 28.
PAGE | 13
COMPETITION, 2022
forbid the agreements which are likely to cause AAEC. Here Roark has shared certain
information relating to pricing strategy and customer retention policies, with GENZ Pvt Ltd
(GENZ). Moreover, The CCR also found a letter from one of Brillante’s employees to its
compliance officer suggesting that Roark had pressurised Brillante to provide MFN treatment
to GENZ and also to share with GENZ the terms and conditions on which Brillante provides
services to Roark.
[ ¶ 45 ] This is more than enough to prove that even if the agreement didn’t cause AAEC
they were likely to cause the same and Act takes a more serious view of cartel misconduct
and the proviso to Section 27(b)66 empowers the CCI to impose a higher penalty, and that too
for each year of the continuance of the cartel agreement.67
[ ¶ 46 ] The Supreme court in the case of Excel Corp Care v. Competition Commission of
India68 noted the objective of Section 27 of the Act is to discourage and stop anti-competitive
practices and to suitably punish the perpetrators of such anti-competitive conduct. The goal of
India’s penalty regime is to ensure deterrence and hence, a deterrence approach should be
followed by the Commission where the optimal fine exceeds or at least be equal to expected
illegal gains.
[ ¶ 47 ] Therefore, the Hon’ble Tribunal is hereby requested to uphold the penalty imposed
by the Commission.
II. The circumstantial evidence should be relied upon to prove AAEC.
[ ¶ 48 ] In India, the term circumstantial evidence was first used by Sir James Stephen,
stating circumstantial evidence to be facts that are relevant to the other fact, whose existence
can be proven by the existence of other facts. The concept of circumstantial evidence has
evolved through the interplay between statutes and judicial interpretation. Circumstantial
evidence, also known as indirect evidence, is an unrelated chain of events which when put
together formulates circumstances leading to the commission of the crime and can be used to
derive a conclusion.
[ ¶ 49 ] It is submitted for consideration before the Hon’ble Competition Appellate
66
The Competition Act 2002, § 27(b), No. 12, Acts of Parliament, 2002 (India).
67
The Competition Act 2002, § 42A, 53, No. 12, Acts of Parliament, 2002 (India).
68
Excel Corp Care v. Competition Commission of India, AIR 2017 SC 2734.
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COMPETITION, 2022
Tribunal that in light of the definition of the term ‘agreement’, the evidence must be assessed
based on benchmark “preponderance of probabilities test’.69 One of the fundamental
problems concerning curtailing cartelization is detecting cartels and conclusively proving
their existence. Since the prohibition on participating in anti-competitive agreements and the
penalties such offenders may incur are well known, it is typical that such activities are
conducted clandestinely, meetings are held in secret and the associated documentation
reduced to a minimum. An agreement, therefore, can be presumed based on the
circumstances of each case.70
[ ¶ 50 ] In India, the CCI was initially of the belief that cartels cannot be proved without
the presence of direct evidence.71 However, the CCI finally deviated from this view and relied
purely on circumstantial evidence, when direct evidence was not available. 72 In doing so, the
CCI observed that “If direct pieces of evidence are not present, but circumstantial pieces of
evidence do indicate harm to the competition at a marketplace, the Commission will certainly
take cognizance of the same.”
[ ¶ 51 ] In the case of Builders Association of India v. Cement Manufacturers

Association,73 it was held that the circumstantial evidence of parallel changes in the prices
and production of goods along with ‘plus factors’ indicated that the cement companies had
formed a cartel to “(a) directly or indirectly determine purchase or sale prices and (b) limit
or control production, supply, markets, technical development, investment or provision of
services” and that there was no requirement of an explicit agreement to prove the same. In the
case of Excel Crop Care Limited v. Competition Commission of India74 also in the absence of
direct evidence of an agreement, the Apex Court relied on circumstantial evidence based on
the oligopolistic character of these firms.
[ ¶ 52 ] Circumstantial Evidence in cases of collusive agreements consists of

communication evidence and economic evidence, which include firm conduct, market
structure, and evidence of facilitating practices. Further, given that anticompetitive offences
69
Escorts Limited & Ors v. CCI & Ors 2014 SCC OnLine Comp AT 38.
70
All India Tyres Dealers Federation v. Tyre Manufacturers, 2013 COMP LR 0092 (CCI).
71
Consumer Online Foundation v. Tata Sky Ltd, 2011 SCC OnLine CCI 12.
72
Builders Association of India v. Cement Manufactures Association, 2012 SCC OnLine Comp AT 267.
73
Builders Association of India v. Cement Manufacturers Association, 2016 COMP LR 983 (CCI).
74
Excel Corp Care v. Competition Commission of India, AIR 2017 SC 2734.
PAGE | 15
COMPETITION, 2022
are civil offences,75 the test of the “balance of probabilities test” is distinguished from
“beyond reasonable doubt” as envisaged under criminal law. 76 “Balance of Probabilities”
becomes the accepted standard, especially so in a case of tacit collusion whereby hardly any
concrete evidence of such activity will exist.77 The reliance, therefore, is rightly placed upon
circumstantial evidence to create plausibility, and it has been an accepted practice to rely
upon economic or indirect pieces of evidence to establish the same.78
[ ¶ 53 ] It is submitted before the Hon’ble Competition Appellate Tribunal that applying

the preponderance of probabilities test to the facts of the case at hand, it is stated that the
preponderance of probability leans in favour of the Commission. The evidence on record
(like the evidence of exchange of commercially sensitive information, data regarding pricing,
customer retention policy and information regarding the terms and conditions on which
Brillante provides services to Roark) makes the case lean in favour of the Commission.
[ ¶ 54 ] It is submitted that the chain of circumstantial evidence stands complete that the
parties formed an anticompetitive agreement in violation of Section 3 and Section 19 of the
Act. The Hon’ble Competition Appellate Tribunal is hereby requested to uphold the
penalization imposed by the Commission as there cannot be any other plausible explanation
to the collusive behaviour in the presence of “plus factors” other than that stated above.
75
JFE Engineering v. Commission (2004) ECR II-2501.
76
M/s International Cylinder (P) Ltd v. CCI Comp LR 184.
77
Re Aluminium Phosphide Tablets Manufactures, 2012 complr 753 (CCI).
78
Re Text Messaging Antitrust Litigation, 630 F. 3d 622 (7th Cir 2010).
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COMPETITION, 2022
ISSUE 4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN REFUSAL
TO DEAL?
[ ¶ 55 ] It is humbly submitted before the Tribunal that the CCR was correct in finding that
Brillante had engaged in refusal to deal as it satisfied the requirements for the application of
the provision on refusal to deal under Section 3(4)(d) of the Act. It was very evidently shown
that there was a lack of competition among suppliers and refusal will cause an adverse effect
on competition as its customers are unable to carry on business because of not being able to
obtain adequate supplies of a product on usual trade terms. Moreover, by charging excessive
pricing Brillante constitute a more subtle form of refusal to sell since its aim was either to put
a customer in a position where he is unable to place an order or to postpone without valid
reason the execution of an order.
I. Brillante had engaged in refusal as its customers were not being able to obtain
adequate supplies of a product on usual trade terms.
[ ¶ 56 ] Normally, it is the prerogative of an enterprise to choose and decide its distribution

channel and persons/entities it wants to deal with unless it has an appreciable adverse effect
on competition in the market. “Refusal to deal” includes any agreement which restricts, or is
likely to restrict, by any method the persons or classes of persons to whom goods are sold or
from whom goods are bought. 79
[ ¶ 57 ] In these types of arrangements, an enterprise, generally with stronger market

power refuses to deal with its customers or suppliers. The obvious effect in such a scenario is
that the downstream market gets affected due to such refusal. It may also be noted that no
enterprise is obliged to supply its products to any company/supplier/distributor. However,
under certain circumstances, such conduct may attract the provisions of the Act which will
depend on case-to-case basis. “The provision does not restrict the right of the trader or
manufacturer engaged in an entirely private business, freely to exercise his independent
discretion as to the parties with whom he will deal unless the purpose is to create or maintain
a monopoly.”80
79
The Competition Act 2002, § 3(4)(d), No. 12, Acts of Parliament, 2002 (India).
80
United States v. Coalgate and Co, 250 US 300; Re Masvi Fabrics v. Arvind Mills Ltd, 1993 1 CTJ 454
[MRTPC]; Re Andhra Pradesh Paper Mills Ltd, 1995 3 CTJ 256 [MRTPC].
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COMPETITION, 2022
[ ¶ 58 ] The primary competition concern likely to arise as a result of a refusal to supply is
that competition will be distorted in a market downstream from the (upstream) market for the
refused input.81 the refusal to deal with the competitors may be abusive more often than not.
For instance, a vertically integrated dominant firm may refuse to supply to a competitor
downstream an essential input that it controls. The refusal to deal in such circumstances can
impede the development of competition in the downstream market.82
[ ¶ 59 ] The following requirements must be satisfied for the application of the provision
on refusal to deal:
1. The would-be customer shows that the business has been substantially affected, or that it is
unable to carry on business as a result of not being able to obtain adequate supplies of a
product on usual trade terms.
2. The inability to obtain adequate supplies must result from a lack of competition among
suppliers.
3. The would-be customer must be willing and able to meet the supplier’s usual trade terms.
4. The product must be in ample supply.
5. The refusal to supply has an adverse effect on competition in a market or is likely to do so.
[ ¶ 60 ] Coming to the facts of the cases we can see that:
a. Brillante is a company that has made pathbreaking innovations in Artificial Intelligence

(AI), with applications in various industrial processes. In particular, Brillante developed a
patented AI technology with pathbreaking applications in chip manufacturing, perceived to
be years ahead of other such technologies.83
b. By 2019, almost all major chip manufacturers servicing the defence sector were using
Brillante’s technology in their production lines84 which very evidently shows that there was a
81
Roundtable on Refusals to Deal, Directorate for Finance and Enterprise Affairs, ¶ 6,
DAF/COMP/WD(2007)100 http://ec.europa.eu/competition/international/multilateral/2007_oct_
refusals_to_deal.pdf.
82
Shri Shamsher Kataria v. Honda Siel, 2014 Comp LR 1 (CCI); Kapoor Glass Pvt Ltd v. Schott Glass India
Pvt Ltd, [2012] 111 CL A137 (CCI).
83
84
PAGE | 18
COMPETITION, 2022
lack of competition among suppliers and refusal will cause an adverse effect on competition.
c. Some e-mails also suggested that Brillante was intentionally delaying these negotiations
and had asked Roark’s competitors to desist from using its technologies pending re-
negotiations85 which again very evidently shows that its customers are unable to carry on
business as a result of not being able to obtain adequate supplies of a product on usual trade
terms.
II. Charging excessive prices may also amount to refusal to deal.
[ ¶ 61 ] Refusal to sell may not be categorical, but it may be implied in the dilatory tactics
or discriminatory terms of sale which may be more onerous than those accorded to other
dealers. Actually, dilatory tactics constitute a more subtle form of refusal to sell since their
aim is either to put a customer in a position where he is unable to place an order or to
postpone without valid reason the execution of an order.86
[ ¶ 62 ] The concept of a refusal to deal covers not only situations of pure or

straightforward refusal, but also instances of an agreement by the entity to deal but under
unreasonable or uneconomic conditions. Charging excessive prices (being potentially abusive
in itself) may amount to an effective refusal to deal.87 The same has been upheld in various
cases.
[ ¶ 63 ] Coming to facts of the present case we can see that post the acquisition of Brillante
by Roark, Brillante reached out to various competitors of Roark to renegotiate the terms of
use and license of its AI technology, asking them to increase the license fee by approximately
25%. This shows the dilatory tactics and discriminatory terms of sale from the company side
that they were going to charge excessive prices from the companies they provide service to.
[ ¶ 64 ] Therefore, the Commission prays before the Tribunal that its decision that by
insisting on a change in terms of the terms of use and license of its AI technology and
85
Id.
86
Re Nalli Silk Traders, RTP Enquiry No. 61/1987, Order dated 25 March 1987.
87
Re Bombay Cotton Waste Merchants Association, RTP Enquiry No. 127/1984, Order dated 20 March 1986;
Re Rajasthan Chemists Association, RTP Enquiry No. 9/1983, Order dated 26 July 1985; Re All India
Organisation of Chemists & Druggists and Raptakos Brett & Co Ltd, RTP Enquiry No. 14/1982, Order dated 25
September 1984; Re Travel Agents Association of India Ltd and British Airways, RTP Enquiry No. 13/1983,
Order dated 9 November 1984; Re Rajasthan Fine Chemicals Stockists Association, RTP Enquiry No.
216/1988, Order dated 5 April 1989.
PAGE | 19
COMPETITION, 2022
intentionally delaying negotiations, Brillante had engaged in a refusal to deal with
competitors of Roark shall be upheld.88
88
PAGE | 20
COMPETITION, 2022
PRAYER FOR RELIEF
Wherefore, in the light of the facts of the case, issues raised, arguments advanced, and
authorities cited, may this Hon’ble Tribunal be pleased to hold, adjudge, and declare
that:
A. THE CCR WAS CORRECT IN FINDING THAT ROARK WAS REQUIRED TO

HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE.
B. ROARK DID NOT HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

DURING THE DAWN RAID AND DEPOSITION.
C. THE CCR WAS CORRECT IN PENALIZING ROARK FOR EXCHANGE OF

INFORMATION/CARTELIZATION.
D. THE CCR WAS CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED

IN REFUSAL TO DEAL.
And/or pass any other order that it may deem fit in the interest of justice, equity, and
good conscience.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR RESPONDENT
PAGE | 21
MEMORIAL for RESPONDENT PRAYER FOR RELIEF

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TEAM CODE – T 11

CCI-HNLU XIITH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT

COMPETITION APPELLATE TRIBUNAL, RURITANIA

FILED UNDER SECTION 3, 5 & 6 OF THE COMPETITION ACT, 2002

IN THE MATTER BETWEEN:

ROARK INDUSTRIES INC. (ROARK)……………………………………………..PETITIONER

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

ISSUE A: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS

I. The acquisition is a notifiable combination....................................................................1

ISSUE B: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

I. The dawn raid conducted was legal and proportionate in nature...................................5

ISSUE C: WAS THE CCR CORRECT IN PENALISING ROARK FOR

II. The circumstantial evidence should be relied upon to prove AAEC..........................14

ISSUE 4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD

II. Charging excessive prices may also amount to refusal to deal...................................18

PRAYER FOR RELIEF........................................................................................................20

Intellect Design Arena Limited v. Competition Commission of India.......................................2

Jignesh Kishorbhai Bhajiawala v. State of Gujarat..................................................................9

N.K. Bajpai v. Union of India....................................................................................................7

Poolpandi v. Superintendent, Central Excise............................................................................8

Rajasthan Cylinders and Containers Limited v. Union of India..............................................13

Re Bombay Cotton Waste Merchants Association...................................................................19

Re Rajasthan Chemists Association.........................................................................................19

Re Rajasthan Fine Chemicals Stockists Association...............................................................19

Re Travel Agents Association of India Ltd and British Airways,............................................19

Sodhi Transport Co v. State of Uttar Pradesh.........................................................................12

Competition Appellate Tribunal Cases

All India Tyres Dealers Federation v. Tyre Manufacturers....................................................14

Builders Association of India v. Cement Manufactures Association.......................................15

Escorts Limited & Ors v. CCI & Ors.......................................................................................14

M/s International Cylinder (P) Ltd v. CCI...............................................................................15

Re Aluminium Phosphide Tablets Manufacture......................................................................15

Shri Shamsher Kataria v. Honda Sie.......................................................................................17

Builders Association of India v. Cement Manufacturers Association.....................................12

Competition Commission of India v. Steel Authority of India...................................................8

Consumer Online Foundation v. Tata Sky Ltd.........................................................................15

Excel Corp Care v. Competition Commission of India......................................................14, 15

Intellect Design Arena Limited v. Competition Commission of India.......................................2

JFE Engineering v. Commission..............................................................................................15

Kapoor Glass Pvt Ltd v. Schott Glass India Pvt Ltd................................................................17

Re Andhra Pradesh Paper Mills Ltd........................................................................................17

Re Cartelisation in Industrial and Automotive Bearings Suo Motu........................................12

Re Masvi Fabrics v. Arvind Mills Ltd......................................................................................17

Re Nalli Silk Traders................................................................................................................18

Re Text Messaging Antitrust Litigation...................................................................................15

South Asia LPG Company Ltd. v. Competition Commission of India.......................................8

South Eastern Railway West Bengal v. Hindustan Composites Ltd........................................13

AG v. Commission of the European Communities.....................................................................6

Dow Benelux v. Commission of the European Communities.....................................................5

France Télécom SA v. Commission of the European Communities...........................................5

Hoechst AG v. Commission of the European Communities.......................................................5

National Panasonic v. Commission of the European Communities..........................................6

United States v. Coalgate and Co............................................................................................17

United States v. Ventresca.........................................................................................................6

Verizon Communication Inc v. Law Offices of Curtis V. Trinko.............................................11

Competition Act 2001, § 43(A).................................................................................................2

INDIA CONST. art 20, cl 3.......................................................................................................8

INDIA CONST. art 21...............................................................................................................9

The Advocates Act 1961, § 30...............................................................................................4, 7

The Companies Act 2013, § 220................................................................................................5

The Competition Act 2002, § 19(3).........................................................................................12

The Competition Act 2002, § 2(h)...........................................................................................10

The Competition Act 2002, § 26(1)...........................................................................................8