MEMORIAL on behalf of the APPELLANT[SUMMARY OF ARGUMENTS]

TEAM CODE: XYZ

2ND CNLU- CCI NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF VALE

(CIVIL APPELLANT JURISDICTION)

Civil Appeal No…….of 2023

STARK LIMITED (APPELLANT)

v.

COMPETITION COMMISSION OF VALE(CCV) (RESPONDENT)

MEMORIAL ON BEHALF OF THE APPELLANT

MEMORIAL on behalf of the APPELLANT[ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

1. WHETHER STARK IS A DOMINANT PLAYER IN HOTEL OTA MARKET?

[1].Dominant position refers to a condition where an enterprise has a position of strength and

when it can operate independently of competitive forces.1 Under Section 4
of the Competition Act, 20022 (hereinafter “the Act”), it is a prerequisite condition that
the enterprise is dominant in the relevant market.3
[2].In consequence, it is submitted that Stark has not a dominant position in the relevant
market as firstly, it does not operate independently of competitive forces prevailing in the
market [A]; and secondly, it cannot affect its competitors or consumers or the relevant
market in its favor [B].

[A]. STARK DOES NOT OPERATE INDEPENDENTLY OF THE COMPETITIVE FORCES

PREVAILING IN THE RELEVANT MARKET

[3].It is submitted that Stark cannot operate independently of the competitive forces

prevailing in the market as firstly, the Market share is not conclusive evidence to establish
dominance. [1]; secondly, there is the presence of competitors in the market [2]; and
thirdly Size, resources, and economic power of the enterprise are limited [3].

2. THE MARKET SHARE IS NOT THE ONLY FACTOR TO ESTABLISH DOMINANCE.

[4].Market share figures alone cannot be the sole criterion for determination of market power
or dominance.4 Although market share is a major factor, it cannot be the sole yardstick
and a number of other factors would play a pivotal role in the determination of market
power or dominance.5 Further, in a dynamic changing economic setting, a static
arithmetical figure to define “dominance” will be an aberration.6 
[5].Further it is submitted that the Competition Appellate Tribunal (hereinafter, COMPAT)
was of the opinion that the assessment ought not to be restricted to the market share of the
enterprise alone. It is also important to consider the factors mentioned in Section 19(4). 7
1
In re Shri Shyam Vir Singh and DLF Universal Limited, Case No. 24 of 2014 (CCI); D.G.I.R v. UB-Mec
Batteries Ltd., (1996) 87 Comp Cas 891.
2
Competition Act, 2002, § 4, No. 12, Acts of Parliament, 2003 (India).
3
SM Duggar, SM Duggar's Guide to Competition Act, 2002 261 (LexisNexis 2017).
4
European Commission, DG Competition Discussion Paper on the Application of Article 82 of the Treaty to
Exclusionary Abuses, (2005), ¶ 32, https://www.ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf.
5
Case 85/76 Hoffmann-La Roche v. Commission, 1979 ECR 461; Case 27/76 United Brands &
Co v. Commission, 1978 ECR 207.
6
Raghavan Committee Report, ¶ 4.4.5.
7
Competition Act, 2002, § 19(2), No. 12, Acts of Parliament, 2003 (India).

2nd CNLU-CCI National Moot Court Competition, 2023 Page | 1

MEMORIAL on behalf of the APPELLANT[ARGUMENTS ADVANCED]

Even if an enterprise has 60% of the market share, it may not be dominant in the market
due to the presence of competitors.8
[6].The presence of efficient competitors in the market, who are in a better financial or
networking position provide sufficient competitive constraints to the biggest player in the
market.9 Although, Stark has 6o% share in the manufacturing market 10 other travel related
services across Vale such as Pyke.com, GreatWyk.com, Blacktyde.com, Saltcliffe.com.
also collectively have approximately 40% share in the industry according to recent
reports.11
[7].It is submitted that in the instant case, Stark doesn't have any substantial market power in
the identified relevant market.12 This is on account of the fact that a lot of other platforms
form the part of this market. The presence of rivals of repute shows prevalence of
competition and thus, prima facie, no one can operate independently in such
circumstances.13 
[8].Therefore, the Competition Commission of Vale (hereinafter, CCV) has erred while
concluding that Stark is dominant since it had only considered the market share of the
company and didn’t paid heed to other factors like Size, Importance, and Commercial
Advantages of Competitor(s) and the presence of an effective Competitor(s) in the
market.

3. PRESENCE OF COMPETITORS IN THE MARKET

[9].The presence of competitors in the market is one of the most important factors to

determine dominance.14 Their existence with good reputation in the market prima
facie indicate that no player is dominant in the market.15
[10]. In the Uber16 case, the Hon’ble court held that Uber is not in a position of strength in
the market due to competition from other players. It cannot operate in the relevant market
independently of its competitors and customers. The court also held that “even with few
players in the market, competition can work perfectly well, constraining the
conduct of each other”.17
8
Meru Travel Solutions Pvt. Ltd. v. Uber India Systems Pvt. Ltd., Case No. 25 of 2017 (CCI).
9
Fast Track Call Cab Pvt Ltd v. ANI Technologies Pvt Ltd., Case No. 6 & 74/2015.
10
Moot Proposition, ¶ 8.
11
Moot Proposition, Table 1.
12
Moot Proposition, ¶ 9.
13
K. Madhusudhan Rao v. Lodha Healthy Constructions & Developers Pvt. Ltd., Case No. 40 of 2013.
14
Ibid
15
2 Official Journal Of The European 7, (2009).
16
Uber, supra note 7.
17
Uber, supra note 7.

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MEMORIAL on behalf of the APPELLANT[ARGUMENTS ADVANCED]

[11]. It is submitted that other OTA Platforms are collectively giving a stiff competition to
Stark. The entire OTA market consists of many players including Pyke.com,
GreatWyk.com etc. Therefore, due to the presence of major competitors in the market,
Stark is not in a dominant position.

4. SIZE, RESOURCES AND ECONOMIC POWER OF THE ENTERPRISE IS LIMITED.

[12]. It is submitted that one of the factors to determine dominant position is the size and
importance of the competitors.18  A firm is said to behave independently of competitive
forces, if it has acquired a position of economic strength. 19 This position of economic
strength can be understood to be one of substantial market power. 20 Similarly, Superior
financial strength in the market coupled with superior resources is an important
indicator of dominance of an enterprise.21
[13]. In the Vodafone case,22 the Commission noted that besides opposite party, Airtel,
Idea, Reliance, Tata, Aircel and MTNL were also providing wireless telecommunication
services in Mumbai. Since, all these players were comparable with each other in terms of
size, resources and expertise, the relevant market was held to be competitive where
customers had choices. The Commission, thus, held that Vodafone was not dominant in
the relevant market.
[14]. It has often been the case in disrupted markets that incumbents tend to lose market
share and profits (purely a result of competition) and subsequently levy allegations of
unfair competition against the new entrant. A scenario of this nature deserves an objective
analysis, which equally weighs the relative probability of natural competitive market
results and anticompetitive practices. 23
[15]. In the present case, Stark has created an online network for customers and hotels to
connect through, it smartly took advantage of assets that are available to all. Therefore, it
is submitted that it did not possess any commercial advantage over competitors and
therefore it is not in a dominant position and thus the allegations against it be dismissed.

18
The Competition Act, §19(1), No. 12, 2002 (India).
19
United Brands Co. v. Commission, 1978 ECR 207; Hoffmann-La Roche & Co. AG v. Commission, 1979
ECR 467.
20
Guidance on Article 102 Enforcement Prioritising Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, OJ 2009 (C 45) 7, ¶10 [hereinafter, Enforcement Guidance]; Art. 102,
TFEU.
21
Satyendra Singh v. Ghaziabad Development Authority, Case No. 86 of 2016 (CCI).
22
Vodafone India Ltd v Competition Commission of India, Case No 04 of 2016 [CCI],
23
Jupiter Gaming Solutions Pvt. Ltd. v. Secretary Finance Gov. of Goa, Case No. 15 of 2010 (CCI).

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MEMORIAL on behalf of the APPELLANT[ARGUMENTS ADVANCED]

[B]. STARK CANNOT AFFECT COMPETITORS, CONSUMERS OR THE RELEVANT MARKET

IN ITS FAVOUR

[16]. To hold a dominant position in the market, the dominant firm must be able to affect
the market. Further, the consumers of that relevant market must be dependent on the firm.
In consequence, it is submitted that Stark cannot affect its competitors, and consumers are
not dependent on Stark as firstly, there exists countervailing buyer power and multiple
competitors [1]; and secondly, there are no entry barriers [2].

1. THERE EXISTS COUNTERVAILING BUYER POWER AND MULTIPLE COMPETITORS

[17]. “Countervailing buyer power”24 refers to the fact that an enterprise, even if it has a
large market share, is unable to act as it wishes since customers have significant
bargaining power due to the presence of other competitors. 25 It indicates the
power of consumers to shift to other existing products or to promote new entry into the
market. This can deter an enterprise with a significant market share from specifying
exploitive conditions.26
[18]. In Sunil Bansal v. Jaiprakash Associates Ltd27, it was noted that a large number of
options were available to the consumers who could actually choose from a wide range of
projects launched/developed by several builders and developers in the geographic region.
The court held that the enterprise is not dominant in the market as there exist
countervailing buying power with the consumers.
[19]. In the instant case, as argued above, the presence of other significant players in the
identified market who produce close substitute to the Appellant's product 28 ensure that the
buyers are shielded from the significant price changes, if any. Furthermore, the buyers,
can approach other sellers, apart from Pyke.com for better prices. It follows that any
competitive practices by the Appellant, if any, will not affect the buyers as there are other
substitutes available to the buyers in the identified market and the buyer.
[20]. Further, rapid growth of tourism29 with the presence of several big, small and medium
sized OTA Platforms in the market was demonstrative of the absence foreclosure of
competition.

24
 Competition Act, 2002, § 19(4)(i), No. 12, Acts of Parliament, 2002 (India).
25
Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66 of 2011 (CCI).
26
Sunil Bansal v. Jaiprakash Associates Ltd., Case No. 45 of 2013 (CCI).
27
Case No. 45 of 2013 (CCI).
28
Moot Proposition, ¶ 9.
29
Moot Proposition, ¶ 4.

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MEMORIAL on behalf of the APPELLANT[ARGUMENTS ADVANCED]

[21]. Hence, due to the presence of Countervailing buying power and competition, Stark

cannot be said to have a dominant position.

2. THERE ARE NO ENTRY BARRIERS

[22]. The strength of an enterprise to create barriers on potential entrants in the market
proves its dominant position.30 An enterprise should have the ability to engage in conduct
that excludes competition or prevents the entry of newcomers into the relevant market
and can influence the relevant market in its favour.
[23]. The Commission has already deliberated at length on the relevance of network effects
and the role of incentives and discounts in catalyzing the building of the network of the
relevant market.31
[24]. The agreement between Hotel Partners and Stark offered were pro-competitive and
were adopted to achieve a minimum viable scale through building of network, which is
essential for enabling an economic activity and is a legitimate business strategy,
particularly in nascent and evolving markets, like the relevant market. A failure to do so
would result in an inefficient system where customers suffer on account of the quality of
Stark's platform is impacted. There was no intention to eliminate competition in the
relevant market.
[25]. The digital market economy players rely on the strength of the network effects to
generate efficiencies. Network effects in OTA market customers mean more demand,
leading to more hotel booking requests on a particular platform as compared to its
competitor, requiring more hotels to serve such customers. More hotels improve the
geographical coverage and reduces the waiting time for customers, thus attracting more
customers.
[26]. Therefore, presence of various players shows that Stark do not have potential to create
any entry barriers in the respective market. Moreover, the protection of the commercial
interests of a firm when it is being attacked is legitimate,32 in the present case the narrow
ambit of  the agreement between Hotel Partners and Stark is reasonable and indicative of
Stark's intent to protect its own interest and technical know-how.

30
Lennart Ritter & David Braun, European Competition Law: A Practitioners Guide (Kluwer Law International
2005); Competition Act, 2002, § 19(4)(f), No. 12, Acts of Parliament, 2002 (India).
31
Samir Agrawal v. ANI Technologies Pvt. Ltd. and Ors., Case No. 37 of 2018 (CCI).
32
Union Brands Company v. Commission of EU, Case No. 27of 1978 (ECJ); East India Petroleum Pvt.
Ltd. v. South Asia LPG Co. Pvt. Ltd., Case No. 76 of 2011 (CCI).

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MEMORIAL on behalf of the APPELLANT[ARGUMENTS ADVANCED]

[27]. Hence it is submitted that Stark’s incentives were aimed at building a strong network
and achieving a Minimum Viable Scale to generate efficiencies. Therefore, it is submitted
that Stark is not in the dominant position in the market.

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MEMORIAL on behalf of the APPELLANT[PRAYER FOR RELIEF]

PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, arguments advanced, and authorities cited, it is
most humbly prayed before this Court that it may be pleased to adjudge and declare that:

I. The Stark is not in a Dominant position in the Hotel OTA Market.

And pass any other order as it may deem fit in favour of the APPELLANT to meet the ends of
justice, fairness and equity.

All of which is humbly prayed.

Date: 26th February 2023 S/d

Counsels for the Appellant

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