T C - TC 11: Before

TEAM CODE - TC 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)……………………………………………..APPELLANT
V.
COMPETITION COMMISSION OF RURITANIA………………………………………RESPONDENT
MEMORIAL for APPELLANT

COMPETITION, 2022
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I
INDEX OF AUTHORITIES ................................................................................................ III
INDEX OF ABBREVIATIONS........................................................................................... IX
STATEMENT OF JURISDICTION ..................................................................................... X
STATEMENT OF FACTS ................................................................................................... XI
ISSUES RAISED................................................................................................................ XIII
SUMMARY OF ARGUMENTS ....................................................................................... XIV
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE A: THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED

TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE. .................................... 1
I. The standalone financial statements must be relied upon. ............................................. 1
II. The Transaction is exempt under De Minimis exception. ............................................ 3
ISSUE B: ROARK HAD A RIGHT TO HAVE ITS LAWYERS PRESENT DURING

THE DAWN RAID AND DEPOSITION. ......................................................................... 5
I. The Dawn Raid conducted was arbitrary in nature ........................................................ 5
II. An investigation by the DG or Commission commences the trial/inquiry ................... 6
III. Roark has the right to present its lawyer during the dawn raid and deposition ........... 7
IV. Foreign Jurisprudence and the position of EU and US Antitrust laws ........................ 9
PAGE | I
MEMORIAL for APPELLANT TABLE OF CONTENTS
COMPETITION, 2022
ISSUE C: WAS CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF
INFORMATION/CARTELISATION? ........................................................................... 11
I. The Appellant did not Cause any AAEC in the Market ............................................... 11
II. There was no direct evidence, circumstantial evidence is insufficient. ...................... 12
III. The concept of “shall presume” is not in itself evidence. .......................................... 14
ISSUE D: CCR WAS INCORRECT IN FINDING THAT BRILLANTE HAD

ENGAGED IN REFUSAL TO DEAL ............................................................................. 16
I. Brillante is eligible for exemptions under Section 3(5) ................................................ 16
II. Brillante has the right to negotiate licenses of its patented technology ...................... 17
III. Brillante has no antitrust duty to deal ........................................................................ 18
PRAYER FOR RELIEF........................................................................................................ 21
PAGE | II
MEMORIAL for APPELLANT TABLE OF CONTENTS
COMPETITION, 2022
INDEX OF AUTHORITIES
Cases
Bishnu Kumar Shrestha v. Union of India and Ors ................................................................... 6
RS Nayak v. AR Antulay ........................................................................................................... 15
Sodhi Transport co v. State of UP ........................................................................................... 15
Competition Appellate Tribunal Cases
Shri Shamsher Kataria v. Honda Siel Cars India Ltd ....................................................... 16, 18
Competition Commission of India
All India Tyre Dealers' Federation v. Tyre Manufacturers ..................................................... 13
Alleged Cartelisation in Flashlights Market in India v. Eveready Industries India Ltd ......... 12
CCI v. JCB India Ltd ................................................................................................................. 5
Chalet Hotels Private Limited and Others v. CCI ..................................................................... 4
Commission of India v. Oriental Rubber Industries Private Ltd ............................................... 9
Google Inc. v. Competition Commission of India ...................................................................... 7
Nirmal Kumar Manshani v. Ruchi Soya Industries Ltd ........................................................... 12
Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India & Anr ........... 17
US UK and EU Cases
Ahlstrom Osakeyhtio v. Commission of the European Communities ...................................... 14
Aspen Skiing Co. v. Aspen Highlands Skiing Corp.................................................................. 19
Blomkest Fertilizer Inc v. Potash Corporation of Saskatchewan ............................................ 14
Brinegar v. United States ........................................................................................................... 6
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MEMORIAL for APPELLANT INDEX OF AUTHORITIES
COMPETITION, 2022
Colgate v. United States ........................................................................................................... 19
Deutsche Bahn and Ors. v. European ........................................................................................ 6
Federal Trade Commission v. Qualcomm Incorporated ......................................................... 19
Hoechst AG v. the Commission of the European Communities ................................................. 6
Hoechst v. Commission ............................................................................................................ 11
Malhotra v. Deutsche Post Bank Home Finance Ltd (Deustche Bank) ................................... 14
Matsushita Electric Industrial Co Ltd v. Zenith Radio Corp................................................... 14
Miranda v. Arizona .................................................................................................................. 10
Mosanto Co. v. Spray-Rite Svc. Corp ...................................................................................... 18
Rajasthan Cylinders and Containers Ltd v. Union of India .................................................... 14
Robathin v. Austria .................................................................................................................... 6
United States v. General Electric............................................................................................. 18
Verizon v. Trinko ...................................................................................................................... 19
Statutes
15 U.S.C. § 1312 ...................................................................................................................... 10
15 U.S.C. § 1312(i)(7)(A) ........................................................................................................ 10
Code of Civil procedure, 1908 ................................................................................................... 8
Code of Criminal Procedure, 1973 ............................................................................................ 5
The Competition Act, 2002, §3(4) ........................................................................................... 16
The Competition Act, 2002, §4................................................................................................ 17
The Companies Act 1956, § 240................................................................................................ 5
PAGE | IV
COMPETITION, 2022
The Companies Act 2013, § 217................................................................................................ 5
The Competition Act 2002, § 36.............................................................................................. 10
The Competition Act 2002, § 36(2) ........................................................................................... 9
The Competition Act 2002, § 41................................................................................................ 5
The Competition Act 2002, § 5(a) ............................................................................................. 2
The Competition Act 2002, § 6(2) ......................................................................................... 3, 4
The Competition Act 2002, §19............................................................................................... 11
The Competition Act 2002, §3................................................................................................. 11
The Competition Act 2002, §3(3) ............................................................................................ 12
The Competition Act 2002, §36(d) .......................................................................................... 10
The Competition Act 2002, §41................................................................................................. 7
The Patents Act, 1970, §48 ...................................................................................................... 16
Regulations
EC Merger Regulations 1998 O.J. C 66 25. .............................................................................. 2
EC Merger Regulations, 2003 1 O.J. C 20 4. ............................................................................ 1
EU Regulation 1/2003, art 20 .................................................................................................... 6
Ministry of Corporate Affairs, S.O. 1218 (E) (27 May 2011). .................................................. 4
Ministry of Corporate Affairs, S.O. 988(E) (Notified on 27 March 2017). .............................. 4
PAGE | V
COMPETITION, 2022
Books and Journals
HELENE ANDERSSON, DAWN RAIDS UNDER CHALLENGE: DUE PROCESS

ASPECTS ON THE EUROPEAN COMMISSION'S DAWN RAID PRACTICES 212 (1st
edn, Hart Publishing, 2018). .................................................................................................. 6
Jonathan M. Proving Refusal to Deal Liability: Three Emerging Alternatives to Aspen Skiing,
15 American Bar Association (2017) .................................................................................. 19
VS Chauhan, Reasoned Decision: A Principle of Natural Justice, 37 Journal of the Indian

Law Institute 1, 92-104 (1995). ............................................................................................. 6
ONLINE REPORTS, GUIDELINES & JOURNALS
AZB & Partners, India- Calculating Turnover: Challenges & Ambiguities, CONVENTUS
LAW (July 14, 2014) https://archive.conventuslaw.com/india-calculating-turnover-
challenges-ambiguities/.......................................................................................................... 3
Harry First, ‘Exploitative Abuses of Intellectual Property Rights’ (2016) New York University
Law and Economics Working Papers, Paper 446, https://ssrn.com/abstract=2799682
accessed on 26 January 2021. .............................................................................................. 18
Hemangini Dadwal, India: The Merger Control Review- Edition 10, AZB & PARTNERS
(September 23 2019) https://www.azbpartners.com/bank/india-the-merger-control-review-
edition-10/. ............................................................................................................................. 4
Michelle M. Burtis & Bruce H. Kobayashi, Why and Original can be Better than a Copy:
Intellectual Property, the Antitrust Refusal to Deal and ISO Antitrust Litigation, 9
Supreme Court Economic Review (2001)
https://www.law.gmu.edu/assets/files/publications/working_papers/01-02.pdf ................. 17
Ministry of Corporate Affairs, Accounting Standard 17, 24-26

https://www.mca.gov.in/Ministry/notification/pdf/AS_17.pdf.............................................. 2
Porter Bael & Bellis, Merger Control 2021, CHAMBERS AND PARTNERS (July 7 2021)
https://practiceguides.chambers.com/practice-guides/comparison/677/7373/11381-11385-
PAGE | VI
COMPETITION, 2022
11401-11413-11421-11430-11432-11437-11441.................................................................. 2
Ronald J Bacigal, ‘Making the Right Gamble: The Odds on Probable Cause’ 74 Miss LJ 279
(2004). .................................................................................................................................... 6
Sakshi Saran Agarwal, Jumping the Gun- An Antitrust Law Perspective, IRCCL (December
13, 2020) https://www.irccl.in/post/jumping-the-gun-an-antitrust-law-
perspective#:~:text=In%20common%20parlance%2C%20%E2%80%9Cjump%20the,Com
mission%20of%20India%20(CCI). ....................................................................................... 4
The United States Department of Justice, Chapter 1: The Strategic Use of Licensing:
Unilateral Refusals To License Patents (June 25, 2015)
https://www.justice.gov/atr/chapter-1-strategic-use-licensing-unilateral-refusals-license-
patents. ................................................................................................................................. 19
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)
GARY MIDDLETON AND BARRY J. RODGER, CASES AND MATERIAL ON UK

AND EC COMPETITION LAW (OUP Higher Education Division 2019)
PAGE | VII
COMPETITION, 2022
SANDRA MARCO COLINO, VERTICAL AGREEMENT AND COMPETITION LAW
(Hart Publishing 2011)
T RAMAPPA, COMPETITION LAW IN INDIA: POLICY, ISSUES, AND

DEVELOPMENT (Oxford 2006)
PAGE | VIII
COMPETITION, 2022
INDEX 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 | IX
MEMORIAL for APPELLANT 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 Petitioner humbly submits to the jurisdiction of this Hon’ble Tribunal.
The present memorandum sets forth the facts, contentions, and arguments in the
present case.
PAGE | X
MEMORIAL for APPELLANT 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 manufacture 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,

specializing 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 cartelisation and anticompetitive conduct by
prominent players in the chip manufacturing industry, including Roark. Roark’s lawyers were
denied entry by CCR, and it deposed Roark’s top employees.
ALLEGED CARTELISATION/EXCHANGE OF INFORMATION
During the 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.
PAGE | XI
MEMORIAL for APPELLANT 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 pressurized Brillante to provide MFN treatment to GENZ and to
share with GENZ the terms and conditions on which Brillante provides services to Roark.
Moreover, as a result 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 | XII
MEMORIAL for APPELLANT 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 | XIII
MEMORIAL for APPELLANT ISSUES RAISED
COMPETITION, 2022
SUMMARY OF ARGUMENTS
ISSUE A: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS

REQUIRED TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE?
It is humbly submitted before the Hon’ble Competition Appellate Tribunal that the CCR was
not justified in finding that Roark was required to notify its acquisition of Brillante. In this
argument it is further submitted that: (I) while CCI has rightly considered Brillante
Ruritania’s financial statements, the standalone financial statements must be relied upon,
instead of its consolidated financial statements. (II) thereafter, the turnover of Brillante
Ruritania falls within the limit to be exempted from its acquisition being notified under the
De Minimis exemption.
ISSUE B: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

DURING THE DAWN RAID AND DEPOSITION?
It is submitted that the dawn raid conducted by the DG at the registered office of Roark was
illegal in nature and the fruits of an illegal search cannot be used. In support of its action, the
appellant puts forward the plea in law that the raid was arbitrary in nature and that Roark has
the right to present its lawyer during the dawn raid and deposition. As it is clear from the
facts of the case that the commission did not have reasonable grounds to believe that
evidence is likely to be found at Roark office premises and that such evidence may be
destroyed or mutilated if a dawn raid is not conducted. Further, no fact suggests that the
commission provided reasons for conducting such a raid to Roark. Reasoned decisions are a
necessary element of
ISSUE C: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE

OF INFORMATION/ CARTELISATION?
It is submitted before the Hon’ble Competition Appellate Tribunal that there was also no
direct evidence to prove AAEC, circumstantial evidence if any, was insufficient. The
appellant did not violate Section 3 or any essentials of Section 1 of the Act as the alleged
agreements between the two companies were not anti-competitive in nature as any exchange
of information and documents amongst the companies did not have an appreciable adverse
PAGE | XIV
MEMORIAL for APPELLANT SUMMARY OF ARGUMENTS
COMPETITION, 2022
effect on competition (AAEC) in the Market moreover the companies were also not in a
position to dominate the market.
ISSUE D: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED

IN REFUSAL TO DEAL?
It is humbly contended before this Hon’ble Tribunal that Brillante had not engaged in refusal
to deal. As per Section 3 of the Competition Act, “refusal to deal” incorporates any
agreement which restricts, or is likely to restrict, the persons or classes of persons to whom
goods are sold or from whom goods are bought. Section 3(5) of the Act lays down certain
exemptions, it is contended that Brillante enjoys exemption under this provision. Further, it is
submitted that Brillante was exercising its rights conferred to it under the Patents Act, 1970
while dealing with regards to its patented AI technology. Hence, in this argument, it is
submitted that: (I) Brillante is eligible for exemptions under provisions of Section 3 (5) of the
Competition Act. (II) Brillante has the right to negotiate licenses of its patented technology
and the same is covered under the ambit of reasonable conditions.
PAGE | XV
MEMORIAL for APPELLANT 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 submitted before the Hon’ble Competition Appellate Tribunal that the
CCR was not justified in finding that Roark was required to notify its acquisition of Brillante.
In this argument it is further submitted that: (I) while CCI has rightly considered Brillante
Ruritania’s financial statements, the standalone financial statements must be relied upon,
instead of its consolidated financial statements. (II) thereafter, the turnover of Brillante
Ruritania falls within the limit to be exempted from its acquisition being notified under the
De Minimis exemption.
I. The standalone financial statements must be relied upon.
[¶2] It is humbly submitted that the turnover1 to be checked against the exemption
threshold must be calculated using the standalone financial statements of Brillante Ruritania
instead of the consolidated financial statements for the previous financial year. Competition
Commission of Ruritania states that “consolidated financial statements of its Ruritanian
subsidiaries were required to be considered, which included financials of its offshore
subsidiaries”, 2 which is a flawed procedure.
[¶3] It is further submitted that the European position is divergent from CCR’s
approach in this regard. This honourable Tribunal can examine, for this purpose, Article 5(1)
of the Council Regulation (EC) (‘EC Merger Regulations’), 3 which deals with the
calculation of turnover, stating that the turnover in a particular member state shall take into
account the products and services provided to consumers in that particular member state.
[¶4] It is contended that the turnover is generally allocated based on where the
customer is located, as this is normally where competition with alternative suppliers takes
1
Clarification, ¶ 2.
2
Moot proposition, ¶ 12.
3
EC Merger Regulations, 2003 1 O.J. C 20 4.
PAGE | 1
MEMORIAL for APPELLANT ARGUMENTS ADVANCED
COMPETITION, 2022
place. This is reiterated by the European Commission’s4 Notice under Council Regulation
(EEC) no 4064/89 that the turnover should be attributed to the place where the customer is
located because that is the place where the deal is made, where the turnover for the concerned
enterprise is generated and where competition with alternative competitors takes place. 5 The
document goes on to further state, “If the place where the customer was located when
purchasing the goods or service and the place where the billing was subsequently made are
different, turnover should be allocated to the former.” 6
[¶5] Hence, it is submitted that the turnover (i.e., the income from the sale of goods and
services)7 in Ruritania would be the value of the services provided or goods sold in Ruritania
i.e., to customers located in Ruritania. The same can only be fairly calculated by using the
standalone financials of Brillante Ruritania and not the consolidated ones.
[¶6] It is contended that Brillante Ruritania’s total turnover attributable to Ruritania

(standalone financials of Brillante Ruritania)8 is Rs. 180 crores out of its total turnover of Rs.
1080 crore.9 Further, this geographical segmentation (turnover based on the location of the
consumers) has been done according to the provisions of Accounting Standard 17 (“AS-
17”).10 Hence, it is contended that CCR’s observation that consolidated financial statements11
of Brillante Ruritania which included the revenue generated by its subsidiary Brillante
Specialities Inc. with operations entirely outside Ruritania were required to be checked
against the thresholds, stands flawed.
[¶7] It is humbly submitted before this Hon’ble Competition Appellate Tribunal that
Brillante Ruritania’s turnover generated in Ruritania, using the standalone financial
statements of the company should be considered for Section 5 of the Act. In this regard, we
4
Porter Bael & Bellis, Merger Control 2021, CHAMBERS AND PARTNERS (July 7 2021)
https://practiceguides.chambers.com/practice-guides/comparison/677/7373/11381-11385-11401-11413-11421-
11430-11432-11437-11441.
5
EC Merger Regulations 1998 O.J. C 66 25.
6
Id.
7
Competition Act 2002, § 1(y), No. 12, Acts of Parliament, 2002 (India).
8
Moot Proposition, Annexure 1, Table II.
9
Moot Proposition, Annexure 1, Table III.
10
Ministry of Corporate Affairs, Accounting Standard 17, 24-26
https://www.mca.gov.in/Ministry/notification/pdf/AS_17.pdf.
11
Supra note 1.
PAGE | 2
COMPETITION, 2022
submit Section 5(a) of the Competition Act12 which 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
[¶8] The above-mentioned provision lays down two entirely separate thresholds, one
for turnover of the parties to the acquisition in India,13 and one for turnover of the parties to
the acquisition in or outside India. This clearly implies that the turnover of a party in
Ruritania would be the turnover generated by the party only in Ruritania, and the turnover of
a party worldwide would include the turnover generated by a party worldwide, including
Ruritania. Hence, it is humbly submitted that the only reasonable approach to calculating the
turnover would be to rely on Brillante Ruritania’s standalone financial statements as that
would truly reflect its turnover in the country’s market, with which CCR is essentially
concerned with.
II. The Transaction is exempt under the De Minimis exception.
[¶9] It is humbly submitted that the acquisition of Brillante Technologies Private

Limited (Brillante) including its subsidiary in Ruritania by Roark Industries Inc. (Roark) was
14
exempt from the provisions of Section 6(2) of the Competition Act 2002, in terms of
which, any person or an enterprise, who or which proposes to enter into a combination, is
required to give notice to the Commission, for the sake of fair competition, disclosing the
details of the combination, within thirty days of execution of any agreement or other
document for acquisition.
[ ¶ 10 ] In support of claiming such exemption, we refer to notification S.O. 988(E). dated

27.03.2017 issued by the Ministry of Corporate Affairs, India (“Target Exemption
Notification").15 The said notification exempts the enterprises which are parties to an
acquisition where the target company has a turnover of not more than rupees one thousand
12
The Competition Act 2002, § 5(a), No. 12, Acts of Parliament, 2002 (India).
13
AZB & Partners, India- Calculating Turnover: Challenges & Ambiguities, CONVENTUS LAW (July 14,
2014) https://archive.conventuslaw.com/india-calculating-turnover-challenges-ambiguities/.
14
The Competition Act 2002, § 6(2), No. 12, Acts of Parliament, 2002 (India).
15
Hemangini Dadwal, India: The Merger Control Review- Edition 10, AZB & PARTNERS (September 23
2019) https://www.azbpartners.com/bank/india-the-merger-control-review-edition-10/.
PAGE | 3
COMPETITION, 2022
crores in India. 16 (Exemption valid up until i.e., 29 March 2022)
17
[ ¶ 11 ] In Chalet Hotels Private Limited and Others v. CCI, the Commission observed
the De Minimis exemption and noted that “since the turnover of Genext (Target in
Transaction 2) is below Rs. 1000 crore, Transaction 2 is covered under the de
minimis exemption notification. Accordingly, Transaction 2 is not notifiable to the
Commission.”
[ ¶ 12 ] Further, it is submitted that the Target Exemption Notification was already

amended in May 201118 by the corrigendum which added the reference ‘to India’ concerning
both assets and turnover. Therefore, a clear distinction has been made between turnover in
India and turnover outside India by the legislature under the Act.
[ ¶ 13 ] It is submitted that in case the CCR takes any contrary interpretation, it would
result in the irrational and arbitrary consequence that a company which has a minuscule
turnover in the Ruritanian market (the market with which the Commission is concerned) and
earns most of its revenue under Brillante Specialities Inc. which has its operations entirely
outside Ruritania, would be susceptible to gun-jumping proceedings.19
[ ¶ 14 ] Thus, it is humbly submitted that as the standalone revenue/turnover of Brillante

Ruritania attributable to Ruritania which was Rs. 180 crores for the relevant financial year,
should be considered while checking against the thresholds. This was below the turnover
threshold of Rs. 1000 crores set out under the Target Exemption Notification. Thus, the
benefit of De Minimis exemption is available to Brillante Ruritania and thus, there was no
requirement to notify the Transaction to the Commission under Sub-Section (2)20 of Section 6
of the Act. Accordingly, it is pleaded that there was no contravention of the provisions of the
Act.
16
Ministry of Corporate Affairs, S.O. 988(E) (Notified on 27 March 2017).
17
Chalet Hotels Private Limited and Others v. CCI, 2017 SCC OnLine CCI 145, ¶ 8.
18
Ministry of Corporate Affairs, S.O. 1218 (E) (27 May 2011).
19
Sakshi Saran Agarwal, Jumping the Gun- An Antitrust Law Perspective, IRCCL (December 13, 2020)
https://www.irccl.in/post/jumping-the-gun-an-antitrust-law-
perspective#:~:text=In%20common%20parlance%2C%20%E2%80%9Cjump%20the,Commission%20of%20In
dia%20(CCI).
20
The Competition Act 2002, § 6(2), No. 12, Acts of Parliament, 2002 (India).
PAGE | 4
COMPETITION, 2022
ISSUE B: DID ROARK HAD A RIGHT TO HAVE ITS LAWYERS PRESENT DURING THE DAWN
RAID AND DEPOSITION?
[ ¶ 15 ] It is submitted that the dawn raid conducted by the DG at the registered office of
Roark was illegal in nature and the fruits of an illegal search cannot be used. In support of its
action, the appellant puts forward the plea in law that: I. The Dawn Raid was arbitrary in
nature; II. An investigation by the DG commences the trial/inquiry; III. Roark had the right
to have its lawyers present during the investigation.
I. The Dawn Raid conducted was arbitrary in nature
[ ¶ 16 ] Power to conduct dawn raid is provided under Section 41 of the Competition

Act,21 2002. It confers power on directive general to conduct search and seizure warrant
against a company when such an order is given by the competition commission.
[ ¶ 17 ] Sub-Section 3 of Section 41 of the Competition Act22 provides for directive

general to conduct search and seizures as these apply to the inspector under Section 240 &
240A, of Companies Act,23 1956 and Section 217 and 220 of Companies Act 2013.24 Since it
is a search and seizure, each and every aspect of it is carried under the Criminal Procedure
25
Code (CrPC). CrPC asks for a judicial warrant for making a search and seizure operation,
thus obtaining a notice from the Chief Metropolitan Magistrate is necessary for conducting
such dawn raids if there exist reasonable grounds to believe that documents, books etc.
relating to the infringement are likely to be destroyed, mutilated, or falsified.
[ ¶ 18 ] To this effect, the Commission in CCI v. JCB India26 directed the DG to furnish a
personal affidavit indicating the material available before it and the reasons for conducting
the dawn raid to ensure that the DG had compelling reasons to conduct the raid.
[ ¶ 19 ] Mature competition law jurisdictions such as the European Union have extensive
law relating to the subject of dawn raids by virtue of precedents. Several rulings of the
21
The Competition Act 2002, § 41, No. 12, Acts of Parliament, 2002 (India).
22
23
The Companies Act 1956, §§ 240 240A, No. 18, Acts of Parliament, 2013 (India).
24
The Companies Act 2013, §§ 217 220, No. 18, Acts of Parliament, 2013 (India).
25
Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India).
26
CCI v. JCB India Ltd, 2014 SCC OnLine Del 6739.
PAGE | 5
COMPETITION, 2022
European Court of Justice and ECHR suggest that a dawn raid should be justified by some
degree of suspicion.27
[ ¶ 20 ] The obligation to specify the subject matter and purpose of the investigation is a
fundamental requirement in order to show that a dawn raid is justified.28 Although Article 20
of Regulation 1/2003(EU)29 which empowers the Commission to conduct dawn raids does
not contain an explicit provision to this effect, the fact that the Commission needs to have
reasonable grounds to suspect targeted companies of unlawful behaviour implies that it
should be likely that the evidence sought is to be found at the premises searched. 30 Moreover,
Before ordering or commencing a search, the authority must have sufficient material to form
a reasonable belief that a search is necessary.31 A similar criterion32 is applied in fulfilling the
probable cause standard in the US.33
[ ¶ 21 ] In the instant case, the moot proposition gives no mention of any such order being
obtained, since it is a mandatory proceeding and has to be carried out, the absence of such an
order vitiates the constitutionality of the dawn raid. Also, it is clear from the facts of the case
that the commission did not have reasonable grounds to believe that evidence is likely to be
found at Roark office premises and that such evidence may be destroyed or mutilated if a
dawn raid is not conducted. Further, no fact suggests that the Commission provided reasons
for conducting such a raid to Roark. Reasoned decisions are a necessary element of principles
of natural justice.34
II. An investigation by the DG or Commission commences the trial/inquiry
[ ¶ 22 ] It is submitted before the Hon’ble Tribunal that during investigations under

Section 41, the commission would be recording evidence, by summoning persons and
documents. Therefore, all statements recorded by the DG or commission during
27
Deutsche Bahn and Ors. v. European Commission EU: T:2013:404; Robathin v. Austria 3 July 2012,
Application no. 30457/06 [44].
28
Hoechst AG v. the Commission of the European Communities EU:C:1989:337 [29].
29
EU Regulation 1/2003, art 20.
30
HELENE ANDERSSON, DAWN RAIDS UNDER CHALLENGE: DUE PROCESS ASPECTS ON THE
EUROPEAN COMMISSION'S DAWN RAID PRACTICES 212 (1st edn, Hart Publishing, 2018).
31
Bishnu Kumar Shrestha v. Union of India and Ors, 1987 (27) ELT 369 (Cal).
32
Ronald J Bacigal, ‘Making the Right Gamble: The Odds on Probable Cause’ 74 Miss LJ 279 (2004).
33
Brinegar v. United States 338 US 160, 175 (1949).
34
VS Chauhan, Reasoned Decision: A Principle of Natural Justice, 37 Journal of the Indian Law Institute 1, 92-
104 (1995).
PAGE | 6
COMPETITION, 2022
investigations are evidence in the subsequent proceedings before the Commission. The
evidence so recorded in the investigations would be placed before the Commission, which
would give then give its report. In this regard, we have to rely on Regulation 41(4)35 and
41(6)36 of the CCI General Regulations which states-
“41. Taking of evidence
(4) The Commission or the Director-General, as the case may be, may call for the parties to
lead evidence by way of affidavit or lead oral evidence in the matter.
(6) The Commission or the Director-General, as the case may be, may, if considered
necessary or expedient, direct that the evidence of any of the parties to be recorded by an
officer or person designated for the said purpose.”
[ ¶ 23 ] Delhi High Court in the case of Google Inc. v. Competition Commission of India 37
held that the investigation by DG is equivalent to commencement of trial/inquiry based on an
ex parte prima facie opinion.
[ ¶ 24 ] Moreover, unlike enactments like the Family Courts Act or the Industrial Disputes
Act, the Competition Act did not contain an express prohibition on counsels accompanying
the parties during the investigation stage. In fact, placing reliance on Regulation 41(5)38 of
the CCI Regulations, same provides for a right of cross-examination and as such, it cannot be
said that the presence of an advocate is contrary to the letter and intent of the Act and the
Rules.
[ ¶ 25 ] Since the DG’s powers under the Act are of the widest amplitude and the
consequences far-reaching, and that an investigation by the DG commences the trial/inquiry,
it is, therefore, necessary that a person called for an investigation by the DG has the right to
be accompanied by counsel.
III. Roark has the right to present its lawyer during the dawn raid and deposition
35
The Competition Act 2002, §41(4), No. 12, Acts of Parliament, 2002 (India).
36
37
Google Inc. v. Competition Commission of India, 2015 (150) DRJ 192.
38
The Competition Act 2002, §41, No. 12, Acts of Parliament, 2002 (India).
PAGE | 7
COMPETITION, 2022
[ ¶ 26 ] Section 36(2) of the Competition Act39 provides for DG to record evidence.
Section 36(2) of the Competition Act reads –
“The Commission shall have, for the purposes of discharging its functions under this Act, the
same powers as are vested in a Civil Court under the Code of Civil Procedure,40 1908 (5 of
1908)….” Section 36 provides similar power to DG as of civil courts. This makes DG
authorized to take legal evidence. This Section also confers the status of a legal entity
recognized by Section 30(ii) of Advocates act onto the Directive- General.
Section 30 of Advocates Act reads –
“Right of advocates to practice. —Subject to provisions of this Act, every advocate whose
name is entered in the 1[State roll] shall be entitled as of right to practice throughout the
territories to which this Act extends, —
(i) in all courts including the Supreme Court;
(ii) before any Tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law
for the time being in force entitled to practice.”
Section 30(ii) confers a right to the lawyers to appear before the Directive General and by
denying them access to Roark Headquarters, these rights of lawyers were vitiated.
[ ¶ 27 ] In the case of Competition Commission of India v. Oriental Rubber Industries

Private Ltd.,41 the Delhi High Court stated that either the Commission or the DG, shall
prescribe, an appropriate procedure to be followed during the course of the proceeding, when
a request for representation by counsel is made, where the counsel may be allowed to
accompany the party, but not to continuously confer with him when the DG is taking the
testimony or asking questions.
[ ¶ 28 ] As a result, while the party's right to be accompanied by an advocate is respected,

the DG's investigations are not hampered unnecessarily. Here, the deposition was done
without providing the right of counsel to Roark’s Ruritanian CEO, hence it breached the very
39
40
Code of Civil procedure, 1908, No. 5, Acts of Parliament, 1908 (India).
41
Commission of India v. Oriental Rubber Industries Private Ltd., W.P. (C) 11411 of 2015.
PAGE | 8
COMPETITION, 2022
right of the deposition.
[ ¶ 29 ] Applying the facts of the present case here, we can see that Roark’s lawyers rushed
to the office as soon as they were made aware of the dawn raid. However, CCR officials
denied them entry into Roark’s offices. Further, by the time Roark’s lawyers had arrived,
CCR officials had conducted and deposed Roark’s top officials. 42 Which breached the very
right of deposition.
[ ¶ 30 ] Moreover, Section 41(2) read along with Section 36(2) of the Competition Act43
provides the Director-General with the powers of the inspector. During the investigation, the
Director-General is bound to follow rules of natural justice. Section 36 of Competition Act44
states – “In the discharge of its functions, the Commission shall be guided by the principles of
natural justice and, subject to the other provisions of this Act and of any rules made by the
Central Government, the Commission shall have the powers to regulate its own procedure.”
[ ¶ 31 ] The International Covenant on Civil & Political Rights affirms the rights of the
person being investigated. “Miranda rights45” as they are known in the US require an officer
to tell the person being investigated that he has a right to talk to a lawyer for advice before
questioning, and the right to have a Lawyer During Questioning. Section 41(D)46 of CrPC.
also talks about the right of the person being investigated to have a lawyer before being
investigated, although not during interrogation.
[ ¶ 32 ] These depositions go against the Principle of Natural Justice, and hence should not
be considered at all in the respective Tribunal.
IV. Foreign Jurisprudence and the position of EU and US Antitrust laws
[ ¶ 33 ] It is humbly submitted before the Tribunal that since competition law in Ruritania
is in a nascent stage, the Commission and the Supreme Court have often relied on foreign
jurisprudence and the position of EU antitrust laws and the US in order to interpret the
provisions of the Competition Act. Adopting a similar approach, both the US and the EU (or
42
Moot Proposition, ¶ 7.
43
The Competition Act 2002, §§ 36(2) 41(2), No. 12, Acts of Parliament, 2002 (India).
44
45
Miranda v. Arizona, 384 U.S. 436 (1966).
46
The Competition Act 2002, §36(d), No. 12, Acts of Parliament, 2002 (India).
PAGE | 9
COMPETITION, 2022
EC) allow parties to be represented by legal counsels at the investigation stage as well.
[ ¶ 34 ] For instance, in the U.S., 15 U.S.C. Section 1312 47 deals with the procedure to be
adopted in Civil Investigative Demands in antitrust investigations. 15 U.S.C. Section
1312(i)(7)(A)48 provides that Anyone compelled to attend under this Section's demand for
oral testimony may be accompanied, represented, and advised by counsel. Counsel may
provide confidential advice to such individual in response to any query posed to him or her,
either at his or her request or on counsel's own initiative. Such a person or counsel may object
to any question, in whole or in part, on the record, and must succinctly express the cause for
the objection.
[ ¶ 35 ] When it is claimed that a person has the right to decline to answer a question
based on any constitutional or other legal right or privilege, including the protection against
self-incrimination, an objection may be legitimately raised, received, and recorded. Such
person shall not otherwise object to or refuse to answer any question and shall not by himself
or through counsel otherwise interrupt the oral examination. If such person refuses to answer
any question, the antitrust investigator conducting the examination may petition the district
court of the United States pursuant to Section 1314 of this title for an order compelling such
person to answer such question.49
[ ¶ 36 ] In the European Union, in the landmark case of Hoechst v. Commission,50

concerning antitrust proceedings at the stage of the investigation, the ECJ held:
“As a result, while some defence rights are limited to the contentious proceedings that follow
the delivery of the statement of objections, other rights, such as the right to legal
representation and the privileged nature of the lawyer-client correspondence, must be
respected beginning with the preliminary-inquiry stage, as recognised by the Court in AM &
S v Commission.”
[ ¶ 37 ] The counsel, therefore, pleads that Roark has the right to present its lawyer during
the dawn raid and deposition.
47
15 U.S.C. § 1312 (1962).
48
15 U.S.C. § 1312(i)(7)(A) (1962).
49
Id.
50
C-1989:337, Hoechst v. Commission, 1989 E.C.R. 02859.
PAGE | 10
COMPETITION, 2022
ISSUE C: WAS CCR CORRECT IN PENALIZING ROARK FOR EXCHANGE OF

INFORMATION/CARTELIZATION?
[ ¶ 38 ] It is submitted before the Hon’ble Competition Appellate Tribunal that there was
no direct evidence to prove AAEC, circumstantial evidence if any, was insufficient. The
appellant did not violate Section 351 or any essentials of Section 1952 of the Act as the alleged
agreements between the two companies were not anti-competitive in nature as any exchange
of information and documents amongst the companies did not have an appreciable adverse
effect on competition (AAEC) in the Market moreover the companies were also not in a
position to dominate the market.
I. The Appellant did not Cause any AAEC in the Market
[ ¶ 39 ] It is submitted before the Hon’ble Competition Appellate Tribunal that the

appellant did not violate either Section 3 of the Competition Act, 2002 or any of the
essentials of Section 19 of the Act. The alleged agreements between the two companies were
not anti-competitive in nature as any exchange of information and documents amongst the
companies did not have an appreciable adverse effect on competition (AAEC) in the Market.
[ ¶ 40 ] It is submitted that as far as pricing agreements by the virtue of cartelisation

(particularly trade associations) are concerned, the CCI in the order pertaining to cartelisation
amongst manufacturers in the case of In Re Alleged Cartelisation in Flashlights Market in
India v Eveready Industries India53, stipulated that the mere existence of an agreement is not
sufficient to establish a violation of Section 3(3)54 of the Act and therefore, a breach of
Section 3(3) must necessarily involve implementation of the alleged agreement between the
competitors.
[ ¶ 41 ] CCI in Shri Nirmal Kumar Manshan v. M/s Ruchi Soya Industries Ltd (Ruchi Soya
Case)55 found certain competitors to have entered into an agreement to increase prices,
accumulate stock, and create artificial scarcity in trading of some commodities in commodity
51
52
53
Re Alleged Cartelisation in Flashlights Market in India v. Eveready Industries India Ltd, 2018 SCC OnLine
CCI 98.
54
55
Nirmal Kumar Manshani v. Ruchi Soya Industries Ltd., 2016 SCC OnLine CCI 81.
PAGE | 11
COMPETITION, 2022
exchanges in India. It did not find a contravention because (among other reasons), there was
no resultant determination of prices of the commodity or a limitation in supply.
[ ¶ 42 ] Relying on the above precedent, it is argued that the fact sheet although does state
that there was an exchange of data regarding pricing, Customer retention policy and
information regarding the terms and conditions on which Brillante provides services to Roark
among the parties but this is not sufficient enough to prove a violation of Section 3 of the
Competition Act, 2002 as the alleged agreements were never put into effect or implemented
in the market.
[ ¶ 43 ] The exchange of data relating to sales, production and marketing indicated “only a
possibility of collusion” and were at best, a plus factor. The fact that certain information was
exchanged does not by itself constitute enough evidence to conclude that the parties acted in
a “coordinated manner”. There was no specific pattern between the parties which could in
any way be evident of the implementation of an anti-competitive arrangement.
56
[ ¶ 44 ] In the Tyre Cartel case, apart from price parallelism, the Commission looked at
“plus factors” to further assess the evidence. The Commission emphasised that due to the
fairly transparent market structure of the tyre industry the price parallelism was dictated by
economic necessity and independent strategic choices rather than concerted action. The court
held that in the absence of a more “specific pattern” between parties, the evidence was
inconclusive, and the manufacturers were exonerated.
[ ¶ 45 ] In the above case, the court denied the existence of coordinated action between the
parties even in the presence of price parallelism, which it concluded was a result of economic
necessity because of the nature of the tyre industry. In the case at hand, even price parallelism
was absent among the parties. At best, there was an exchange of data, information and
documents among the parties which is not liable to be penalised in the absence of a
coordinated plan put into effect.
II. There was no direct evidence, circumstantial evidence is insufficient.
[ ¶ 46 ] 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
56
All India Tyre Dealers' Federation v. Tyre Manufacturers, 2012 SCC OnLine CCI 65.
PAGE | 12
COMPETITION, 2022
can prove by the existence of other facts. 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.
[ ¶ 47 ] It is submitted that in the case at hand, there is no direct evidence that can prove
that the agreement among the parties was anti-competitive in nature. The evidence in the
facts of the case is insufficient to conclusively prove AAEC or anti-competitive nature. The
evidence on record only shows the exchange of data, information, or documents, but is silent
about any plan being implemented to affect competition in the market.
[ ¶ 48 ] Competition law cases across the world evince that circumstantial evidence cannot
solely be relied on for the detection of cartels. In the United States, it is a well-settled law that
merely parallel conduct that is consistent with permissible competition, without any other
evidence to support the same, would be insufficient to support even the inference of
conspiracy.57 This means that circumstantial evidence must be corroborated with direct
evidence. The United States Court of Appeals also refused to rely on circumstantial evidence
in the case of Blomquist Fertilizer due to the possibility of independent action.58
[ ¶ 49 ] Further, so far as the EU is concerned, the European Court of Justice observed that
“parallel conduct cannot be regarded as furnishing proof of concertation unless concertation
constitutes the only plausible explanation for such conduct”.59 This means that the only way
parallel conduct, which qualifies as circumstantial evidence, could be exclusively relied on to
prove cartelisation is if there is no other explanation of such conduct.
[ ¶ 50 ] Further, the Supreme Court of India in Rajasthan Cylinders and Containers Ltd. v.
Union of India60 has implied modification of the traditional approach of determining the
AAEC under the Act. It states that the AAEC may not always be presumed for cartels as
there is a possibility of parallel behaviour between the players due to the market conditions,
inter alia. Therefore, the Supreme Court gave a hint towards the need to bring in subjective
assessment as per the prevailing facts and circumstances at that given point. Besides the CCI
57
Matsushita Electric Industrial Co Ltd v. Zenith Radio Corp, 465 U.S. 752 (1984).
58
Blomkest Fertilizer Inc v. Potash Corporation of Saskatchewan, 203 F 3d 1028 (2000).
59
Ahlstrom Osakeyhtio v. Commission of the European Communities, (1993) ECR I-1309 978 — 979.
60
Rajasthan Cylinders and Containers Ltd v. Union of India, 2018 SCC OnLine SC 1718.
PAGE | 13
COMPETITION, 2022
in Neeraj Malhotra v. Deutsche Post Bank Home Finance Ltd. (Deutsche Bank)61 has
signified the dilution of per se rule under Section 3(3) of the Act.
[ ¶ 51 ] Relying on the above three authorities, we can conclude that the “per se” rule in
Section 3(3) of the Act does not have to be strictly applied. The presumption of AAEC is
rebuttable. There should be subjective assessment giving due regard to the facts and
circumstances. Also, circumstantial evidence is often considered unreliable (US & EU cases).
The evidence, in this case, cannot prove AAEC in the market as the parties did not act in a
cartel-like arrangement as neither did they fix prices, nor distributed the geographical markets
among them, the fact sheet is silent about production capacity and limitations or control on
supply.
[ ¶ 52 ] It is also submitted that since there was no price parallelism or concerted action
and circumstantial evidence was insufficient to prove AAEC, the factors required u/s 19 of
the Act to prove AAEC, like the creation of barriers for new entrants, proof of driving out
existing competitors or foreclosure of competition by hindering entry into the market, cannot
be proved by the Commission.
III. The concept of “shall presume” is not in itself evidence.
[ ¶ 53 ] The concept and meaning of “shall presume” used in Section 3(3) of the act have
been explained by the courts in India in numerous cases. In the case of Sodhi Transport co v
State of UP62 and RS Nayak v AR Antulay63 the court observed that the world shall presume
have been used in Indian judiciary lower for over centuries to convey that they lay down a
rebuttal presumption in respect of minors regarding which they are used and not laying down
a rule of conclusive proof.
[ ¶ 54 ] The court also observed that presumption is not in itself evidence but only makes
a prima facie case for the party in whose favour it exists it indicates the burden on whom the
burden of proof lies but when it is rebuttable it only points out the party on which lies the
duty of going forward on the evidence on the fact presumed and when the party has produced
evidence clearly and recently tending to show that factorial is not as presumed, the purpose of
61
Malhotra v. Deutsche Post Bank Home Finance Ltd (Deustche Bank), 2010 SCC OnLine CCI 28.
62
Sodhi Transport co v. State of UP (1986) 2 SCC 468.
63
RS Nayak v. AR Antulay, 1986 2 SCC 716.
PAGE | 14
COMPETITION, 2022
presumption is over.
[ ¶ 55 ] Thus, the presumption laid down under Section 3(3) of the act is rebuttable.
However, the grounds taken for rebutting the presumption are to be tested on the touchstone
of guiding factors led down under Section 19(3) of the competition in 2002. Here it is proven
no such violations have been made through 3.1 and 3.2 therefore the concept of presumption
is over.
PAGE | 15
COMPETITION, 2022
ISSUE D: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN REFUSAL TO
DEAL?
[ ¶ 56 ] It is humbly contended before this Hon’ble Tribunal that Brillante had not engaged
in refusal to deal. As per Section 3 of the Competition Act, “refusal to deal” incorporates any
agreement which restricts, or is likely to restrict, the persons or classes of persons to whom
goods are sold or from whom goods are bought.64 Section 3(5) of the Act lays down certain
exemptions, it is contended that Brillante enjoys exemption under this provision. Further, it is
submitted that Brillante was exercising its rights conferred to it under the Patents Act, 1970
while dealing with regards to its patented AI technology. Hence, in this argument, it is
submitted that: (I) Brillante is eligible for exemptions under provisions of Section 3 (5) of the
Competition Act. (II) Brillante has the right to negotiate licenses of its patented technology
and the same is covered under the ambit of reasonable conditions.
I. Brillante is eligible for exemptions under Section 3(5)
[ ¶ 57 ] It is contended that 3(5)(i) protects the rights of Brillante to impose restrictions on

the sale of and prevent the use of its patented AI technology, conferred upon it by Section 48
of the Patents Act, 1970. Section 3(5)65 provides exemptions that protect the right of a person
to impose reasonable conditions, as may be necessary for protecting any of his rights which
have been or may be conferred upon him under the Patents Act, 1970.66
67
[ ¶ 58 ] Section 48 of the Indian Patents Act provides the rights of the patentee
(Brillante) under the Act and confers upon the patentee the right to prevent third parties from
the act of making, using, selling, or importing that product in India if the subject matter of the
patent is a product. It is submitted that being the owner and developer of a patented AI
technology, Brillante has the right to protect its innovation by means of imposing reasonable
terms and conditions as it deems fit for the said protection. Moreover, with the licensing of
technology, it is not reasonable to suggest that a company must be prepared to license its
patented technology to everyone. Hence, it is submitted that in the present case, the
64
Competition Act, 2002, §3(4), explanation d, No. 12, Acts of Parliament, 2002 (India).
65
Id. at §3(5).
66
Id. at §3(5)(i)(b).
67
The Patents Act, 1970, §48, No. 39, Acts of Parliament, 1970 (India).
PAGE | 16
COMPETITION, 2022
exemption provisions under Section 3(5) applies to Brillante.
[ ¶ 59 ] In Shri Shamsher Kataria v. Honda Siel Cars India Ltd,68 the CCI found the
refusal to deal. But this was possible because the car manufacturers were in a dominant
position. In the case at hand, no contention for Brillante abusing its dominant position under
Section 469 of the Competition Act has been made.70
It is contended that Brillante enjoys IPR exemptions on account of the provisions of Section
3(5)(i) of the Act, the restrictions and conditions imposed upon Roark’s competitors would
fall within the ambit of reasonable conditions to prevent infringements of Brillante’s IPRs.
II. Brillante has the right to negotiate licenses of its patented technology
[ ¶ 60 ] It is contended that Brillante was exercising rights conferred to it under the Patents
Act when it attempted to renegotiate prices, terms, and conditions to use its patented
technology. The Tribunal may examine that there is nothing that conclusively suggests that
the delay was intentional/there was a refusal to license. Additionally, mere renegotiation of
the terms of use of Brillante’s AI technology does not amount to a refusal to deal.
[ ¶ 61 ] As contended in the previous sub-issue, Brillante’s patent over its AI technology

confers it with special rights and exemptions under Section 3(5) of the Act. In the present
case, Brillante attempts to renegotiate the terms of use and license of its AI technology,
71
asking users of the technology to increase the license fee by approximately 25%. Section
48 of the Patents Act confers the right upon the patentees to impose reasonable conditions on
the use of their patented products. As Brillante has specifically requested that the license fee
must be increased by 25% - has the right72 to do so - the very fact that it has requested an
increase in license fee, suggests it intends to negotiate a deal. In Telefonaktiebolaget LM
Ericsson (Publ) v. Competition Commission of India & Anr.,73 the Delhi High Court held that
a patentee has been provided with a statutory right to prevent third parties from making,
68
Shri Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).
69
Competition Act, 2002, §4, No. 12, Acts of Parliament, 2002 (India).
70
71
72
Michelle M. Burtis & Bruce H. Kobayashi, Why and Original can be Better than a Copy: Intellectual
Property, the Antitrust Refusal to Deal and ISO Antitrust Litigation, 9 Supreme Court Economic Review
(2001) https://www.law.gmu.edu/assets/files/publications/working_papers/01-02.pdf
73
Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India & Anr, 2016 SCC OnLine Del
1951: (2016) 232 DLT (CN) 1: (2016) 66 PTC 58.
PAGE | 17
COMPETITION, 2022
using, offering for sale, selling, or importing the patented product. The only way a patent
holder can exercise his rights is by refusing a license permitting a third party to exploit the
patent. The court added that it would be legitimate for a patentee holder to seek injunctive
relief to enforce such rights.
[ ¶ 62 ] In the USA, the patentee’s right to exploit its patent to the fullest is recognized
which is constrained only by the market demand.74 In United States v. General Electric
1926,75 the Supreme Court of the United States held that the patentee in question could
license its patents to a competitor and set the price at which the end product would be sold.
The court held that the license could be granted “under the specifications of his patent for
any royalty or upon any condition the performance of which is reasonably within the reward
which the patentee by the grant of the patent is entitled to secure…. one of the important
elements of the exclusive right of a patentee is to acquire profit by the price at which the
article is sold.” In Monsanto’s case, 76
It was noted that “there was no reason for antitrust
concerns unless Monsanto tries to fix the final selling price of the seeds sold by the
producers, according to the report.” In the present case, it can be deduced that Brillante’s act
of renegotiating the terms of use and license of its AI technology, asking the third parties to
increase the license fee by 25%,77 is within its rights to set the price for its patent. The same
is covered under its right to acquire profits by the fee at which the license is issued.
[ ¶ 63 ] Moreover, in the Honda Siel case, the Commission observed that while
determining whether an exemption under Section 3(5)(i) of the Act is available or not, it is
necessary to consider, inter alia, the following: (a) Whether the contended right is reasonably
characterised as protecting intellectual property; and (b) Whether the statutory requirements
of granting the IPRs are being satisfied.78 It is contended, as mentioned in the above
arguments, that the conditions imposed by Brillante were in furtherance of its rights
conferred to it to protect its patent and make profits out of the same. Hence, both the
ingredients laid down in the Honda Siel case are contended to be fulfilled in the present case.
III. Brillante has no antitrust duty to deal
74
Harry First, ‘Exploitative Abuses of Intellectual Property Rights’ (2016) New York University Law and
Economics Working Papers, Paper 446, https://ssrn.com/abstract=2799682 accessed on 26 January 2021.
75
United States v. General Electric, 272 U.S. 476 (1926).
76
Mosanto Co. v. Spray-Rite Svc. Corp., 457 U.S. 752 (1984).
77
Supra note 9.
78
Shri Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI) at ¶ 20.6.16.
PAGE | 18
COMPETITION, 2022
[ ¶ 64 ] Firstly, it is contended that nothing conclusively suggests that the delay was
intentional in negotiations, with an intention to completely refuse to license Roark’s
competitors. Instead, the proposition clearly mentions that Brillante had specifically
requested that the license fee must be increased by 25%. The very fact that it has requested an
increase in license fee, suggests that renegotiation to obtain a fairer price was its intention,
and not a complete refusal to license. Secondly, even if the aforementioned contention is
disregarded by the Hon’ble Tribunal, it is contended that Brillante has full rights to
unilaterally refuse to license companies.79 These rights are conferred upon the patentee
(Brillante) under Section 48, Patents Act along with the exemptions under Section 3(5) of the
Competition Act, as contented in the earlier sub-issues. Additionally, here we rely on the
statement made by the Supreme Court of the US in cases such as Verizon v. Trinko80 and
Colgate v. the U.S.81 where it was made clear that no one was compelled by the antitrust laws
to deal with their competitors.
[ ¶ 65 ] Moreover, relying on the elements of unilateral refusal to deal as laid down by the
US Supreme Court in the landmark case of Aspen Skiing.82 This judgement is seen as the
only path for a viable refusal-to-deal theory by courts. This means that to state a viable
Section 2 claim, courts generally require a plaintiff to allege facts closely analogous to Aspen
Skiing (i.e., that the defendant terminated a voluntary and presumably profitable prior course
of dealing with the plaintiff and the conduct had no economic justification except its tendency
to exclude the plaintiff).83 In the present case, it is contended that the element of “no
economic justification” as laid down in Aspen Skiing is missing as Brillante seeks to make
use of its rights of imposing reasonable conditions on third parties in order to make profits
out of its patent in addition to prevent infringement of its IPRs.
[ ¶ 66 ] Furthermore, in Federal Trade Commission v. Qualcomm Incorporated,84 the court

noted that many scholars and practitioners had “expressed caution about using the antitrust
79
The United States Department of Justice, Chapter 1: The Strategic Use of Licensing: Unilateral Refusals To
License Patents (June 25, 2015) https://www.justice.gov/atr/chapter-1-strategic-use-licensing-unilateral-
refusals-license-patents.
80
Verizon v. Trinko, 540 U.S. 398 (2004).
81
Colgate v. United States, 250 U.S. 300 (1919).
82
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).
83
Jonathan M. Justl et al, Proving Refusal to Deal Liability: Three Emerging Alternatives to Aspen Skiing, 15
American Bar Association (2017).
84
Federal Trade Commission v. Qualcomm Incorporated, No. 19-16122 (9th Cir. 2020).
PAGE | 19
COMPETITION, 2022
laws to remedy what are essentially contractual disputes between private parties engaged in
the pursuit of technological innovation.” The facts of the present case also suggest that
Brillante’s actions here do not revolve around anti-competitive behaviour.
[ ¶ 67 ] It is therefore pleaded that Brillante hadn’t engaged in refusal to deal and that
Brillante was exercising its rights conferred to it under the Patents Act, 1970 while dealing
with regards to its patented AI technology. Accordingly, Brillante enjoys IPR exemptions on
account of the provisions of Section 3(5)(i) of the Act. It is further submitted that act of
renegotiating the prices is covered under the ambit of rights conferred to it by the statutes.
Further, Brillante had no antitrust duty to deal with its competitors hence its actions can’t be
reasonably termed as ‘refusal to deal’.
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 NOT CORRECT IN FINDING THAT ROARK WAS REQUIRED
TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE.
B. ROARK DID HAVE A RIGHT TO HAVE ITS LAWYER PRESENT DURING

THE DAWN RAID AND DEPOSITION.
C. THE CCR WAS NOT CORRECT IN PENALISING ROARK FOR EXCHANGE

OF INFORMATION/CARTELISATION.
D. THE CCR WAS NOT 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 APPELLANT
PAGE | 21
MEMORIAL for APPELLANT PRAYER FOR RELIEF

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TEAM CODE - TC 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)……………………………………………..APPELLANT

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

MEMORIAL for APPELLANT

TABLE OF CONTENTS ........................................................................................................ I

INDEX OF AUTHORITIES ................................................................................................ III

STATEMENT OF JURISDICTION ..................................................................................... X

STATEMENT OF FACTS ................................................................................................... XI

ISSUES RAISED................................................................................................................ XIII

SUMMARY OF ARGUMENTS ....................................................................................... XIV

ARGUMENTS ADVANCED .................................................................................................. 1

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

I. The standalone financial statements must be relied upon. ............................................. 1

II. The Transaction is exempt under De Minimis exception. ............................................ 3

ISSUE B: ROARK HAD A RIGHT TO HAVE ITS LAWYERS PRESENT DURING

I. The Dawn Raid conducted was arbitrary in nature ........................................................ 5

II. An investigation by the DG or Commission commences the trial/inquiry ................... 6

II. There was no direct evidence, circumstantial evidence is insufficient. ...................... 12

III. The concept of “shall presume” is not in itself evidence. .......................................... 14

ISSUE D: CCR WAS INCORRECT IN FINDING THAT BRILLANTE HAD

I. Brillante is eligible for exemptions under Section 3(5) ................................................ 16

III. Brillante has no antitrust duty to deal ........................................................................ 18

PRAYER FOR RELIEF........................................................................................................ 21

Bishnu Kumar Shrestha v. Union of India and Ors ................................................................... 6

RS Nayak v. AR Antulay ........................................................................................................... 15

Sodhi Transport co v. State of UP ........................................................................................... 15

Competition Appellate Tribunal Cases

Competition Commission of India

All India Tyre Dealers' Federation v. Tyre Manufacturers ..................................................... 13

CCI v. JCB India Ltd ................................................................................................................. 5

Chalet Hotels Private Limited and Others v. CCI ..................................................................... 4

Commission of India v. Oriental Rubber Industries Private Ltd ............................................... 9

Google Inc. v. Competition Commission of India ...................................................................... 7

Nirmal Kumar Manshani v. Ruchi Soya Industries Ltd ........................................................... 12

Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India & Anr ........... 17

Ahlstrom Osakeyhtio v. Commission of the European Communities ...................................... 14

Aspen Skiing Co. v. Aspen Highlands Skiing Corp.................................................................. 19

Blomkest Fertilizer Inc v. Potash Corporation of Saskatchewan ............................................ 14

Brinegar v. United States ........................................................................................................... 6

Deutsche Bahn and Ors. v. European ........................................................................................ 6

Federal Trade Commission v. Qualcomm Incorporated ......................................................... 19

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

Hoechst v. Commission ............................................................................................................ 11

Matsushita Electric Industrial Co Ltd v. Zenith Radio Corp................................................... 14

Miranda v. Arizona .................................................................................................................. 10

Mosanto Co. v. Spray-Rite Svc. Corp ...................................................................................... 18

Rajasthan Cylinders and Containers Ltd v. Union of India .................................................... 14

Robathin v. Austria .................................................................................................................... 6

United States v. General Electric............................................................................................. 18

Verizon v. Trinko ...................................................................................................................... 19

15 U.S.C. § 1312 ...................................................................................................................... 10

15 U.S.C. § 1312(i)(7)(A) ........................................................................................................ 10

Code of Civil procedure, 1908 ................................................................................................... 8

Code of Criminal Procedure, 1973 ............................................................................................ 5

The Competition Act, 2002, §3(4) ........................................................................................... 16

The Competition Act, 2002, §4................................................................................................ 17

The Companies Act 1956, § 240................................................................................................ 5

The Competition Act 2002, § 36.............................................................................................. 10

The Competition Act 2002, § 36(2) ........................................................................................... 9