“VakTavya” 3rd National Moot Court Competition,2019

Team Code : CU-11

BEFORE THE
HON’BLE
SUPREME COURT OF ATLANTIS
Sigma Industries Limited And APPELANT (S)
Cosmos Telecomm Limited
Vs.
Atlantis Appellate Tribunal RESPONDENT (S)

MEMORIAL FILED ON BEHALF OF APPELLANTS

MEMORIAL ON BEHALF OF APPELLANTPage 1

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………………………3

INDEX OF AUHTORITIES……………………………………………………………………………….4

STATEMENT OF JURISDICTION……………………………………………………………………..6

STATEMENT OF FACTS…………………………………………………………………………………7

STATEMENT OF ISSUES RAISED………………………………………………………………….11

SUMMARY OF ARGUMENTS………………………………………………………………………12

ARGUMENTS ADVANCED…………………………………………………………………………..14

PRAYER……………………………………………………………………………………………………..17

MEMORIAL ON BEHALF OF APPELLANTPage 2

 LIST OF ABBREVIATIONS

ABBREVITION FULLFORM
ACC Atlantis Competition Commission
HON’BLE Honourable
& And
ACA Atlantis Competition Act
ACR Atlantis Combination Regulations
GHz Gigahertz
MHz Megahertz
TRAA Telecom Regulatory Authority Of Atlantis
WTO World Trade Organization
GATT General Agreement on Tariffs and Trades
SEBA Security Exchange Board Of Atlantis
APT Atlantis Appellate Tribunal

MEMORIAL ON BEHALF OF APPELLANTPage 3

 INDEX OF AUTHORITIES

STATUTORY AUTHORITY
1. The Competition Act, 2002
2. Constitution of India
3. Federal Trade Commission Act, 1914
4. The Sherman Anti-Trust Act, 1890
5. Clayton Antitrust act, 1914

BOOKS REFERRED
1. Textbook on Competition Law, Dr. H. K. Saharay
2. Competition Law in INDIA, T. Ramappa

WEBSITES
1. www.lawctopus.com
2. www.ftc.gov
3. www.ourdocuments.gov
4. www.linfo.org
5. www.investopedia.com
6. Ec.europa.eu
7. Eur-lex.europa.eu
8. www.business-standard.com
9. www.vakilno1.com
10. www.businestoday.in
MEMORIAL ON BEHALF OF APPELLANTPage 4
11. www.competition.cyrilamarchandblogs.com
12. www.mondaq.com
13. www.indiacorplaw.in

CASES REFERRED
1. Bharti Airtel Limited vs Reliance Industries Limited and Reliance Jio
Infocomm Limited. Case no. 03 of 2017, Competition Commission of
India.
2. Competition Commission Of India vs Bharti Airtel Limited And Others.
3. Union Of India vs Cynamide India Limited, 1987 AIR 1802, 1987 SCR
(2) 841
4. Mr. Ramakant Kini vs Dr. L.H. Hiranandani Hospital, Powai, Mumbai,
case no. 39 of 2012
5. M/s ESYS Information Technologies Pvt. Ltd. SCO, 326, Sector 40 - D,
Chandigarh – 36
vs

Intel Corporation (Intel Inc.) Santa Clara, California, USA Intel

Semiconductor Ltd. 32/F Two Pacific Place, 88 Queensway, Central,
Hong Kong And Intel Technology India Pvt. Ltd SCO, 19, Sector 17 - E,
Chandigarh -17, case no. 48 of 2011.

MEMORIAL ON BEHALF OF APPELLANTPage 5

 STATEMENT OF JURISDICTION
The Appellants humbly submits to the jurisdiction of Honorable Supreme
Court of Atlantis to review the order passed by the Atlantis Appellate
Tribunal. It sets forth the facts, contention, arguments, claims present in the
case.

MEMORIAL ON BEHALF OF APPELLANTPage 6

 STATEMENT OF FACTS

1. The sovereign Republic of Atlantis is a South Asian democratic country;

the laws are pari materia with the laws of India, subject to exceptions
specified below. The Atlantis Competition Act (ACA) is the primary statute
governing competition law in Atlantis, and the Atlantis Competition
Commission (ACC) is the statutory authority charged with the enforcement
of the Atlantis Competition Act (ACA). ACC is empowered to and has issued,
several regulations, like the Atlantis Combination Regulations (ACR) which
deals with mergers and acquisitions.

2. The decisions of the major countries where common law is prevalent are
of significant value for the Republic of Atlantis. The ACC also relies on
established competition law precedents of the European Union and the
United States of America.

3. Ranked at 45th position in Fortune 500 world ranking, Sigma is one of the
fastest growing companies of Atlantis. Cosmos is a new subsidiary company
of the Sigma Groups providing 5g services in Atlantis. Anish Mangwani is the
chairman of this group. Other businesses of Sigma group are chemicals
energy, steel, petroleum gas, DTH, Airlines, shopping malls – retail chain,
clothing etcetera.

4. In a 5G spectrum auction, Cosmos won the race and purchased one of the
spectrums. Owing to high price of the bid many business groups did not
participate and those who did were not ready to pay a base bid price as high
as 5.77 Lakh Crore Atlantis Rupee (expected revenue). In Atlantis earlier,
only 2.400-2.4835 GHz and 5.825-5.875 GHz were unlicensed bands for
indoor and outdoor use of low power equipment. Recently, 5150-5250 MHz,
5250-5350 MHz, 5470-5725 MHz and 5725-5875 MHz frequency bands have
been included as unlicensed for use in indoor and outdoor environment. The
opening of more unlicensed frequencies will facilitate development of 5G

MEMORIAL ON BEHALF OF APPELLANTPage 7

ecosystem as per directives of the Telecom Regulatory Authority of Atlantis
(TRAA). Single-band bid price varies from spectrum to spectrum from 4000
Crore to 8000 Crore Atlantis Rupee.

5. Cosmos was the first company to introduce a 5g spectrum in the Republic

of Atlantis. Cosmos invested almost 600,000 thousand Crore to develop 5g
network in the Republic of Atlantis.

6. With the advent of the science and technology, especially Artificial

Intelligence (AI) future belongs to those companies which are running on
superfast 5g network, for instance, self-driven cars need high precision to
take real-time decisions to avoid accidents. Following are the key areas
where 5g network is a big boom; agriculture, transportation, photography,
market investment, health (to identify future illness i.e. cancer), life on
another planet, marketing, customer services, computer apps and programs,
machine learning, space travel, real-time web search, etcetera.

7. Worldcom and Uniphone were the major telecommunication companies

in Atlantis, comprising a total of 70% share in the telecommunication market
(40% Worldcom and 30% Uniphone, respectively). But the entry of Cosmos
in the telecom market of Atlantis with its predatory pricing policy and new
superfast 5g network. As a result, within 3 years Cosmos has become a
leading player with 59% share in the telecom market. Out of 12 mobile
operators which were functioning in Atlantis, only 5 operators have
sustained because other operators stopped working due to predatory
pricing policy and political relations of Cosmos. According to a new global
survey, Cosmos is expected to become the world’s largest telecom service
providing company by 2021.

8. Cosmos started providing almost free connections (free data and calling
plan) to new consumers for one year as a gift, thus, leading millions of
consumers to switch to Cosmos under National Mobile Portability Scheme.
Therefore, Worldcom and Uniphone approached the ACC regarding the
misuse of the dominant position and predatory pricing policy. The TRAA was
silent on this event and later announced that a subscriber is eligible to make

MEMORIAL ON BEHALF OF APPELLANTPage 8

a porting request only after 90 days of the date of activation of his mobile
connection. If a number is already ported once, the same can again be
ported only after 90 days from the date of the previous porting. TRAA has
explained that this minimum period is required so as to enable the service
provider to recover the customer acquisition cost. After porting of a mobile
number, if it remains disconnected for 90 days, it will be reversed back to
the number range holder (original operator).

9. Mr. Anish Mangwani (Chairperson- Sigma) is also a member of the

parliament of Atlantis and has good relations with the ruling government.
Being one of the biggest businessmen and entrepreneurs of Atlantis, he is
helping Atlantis in becoming global leader at different forums i.e. United
Nations, World Bank, WTO, GATT, etc. because of which there are rumors
that Atlantis can be a global leader by 2050.

10. Cosmos took benefit of its position in the market share, made an
agreement of acquisition with Virgino Telecom, Inrich Cellular and Airfree
Cellular and purchased these companies at comparatively much lesser price
(due to market uncertainty). But there is a big dispute regarding acquisition
agreement i.e. the terms and conditions were not allegedly fair and existing
shareholders of above-mentioned companies were not in favor of this
agreement.

11. Atlantis is also a party to different global treaties on anti-trust.

Monopolies regulations and World Trade Organization are also against the
malpractice and blind support to big corporate giants.

12. Citing similar powers available with the fair-trade watchdog ACC,
Security Exchange Board of Atlantis (SEBA) has proposed to impose a lesser
penalty on a person who may have violated securities laws but provides
assistance during investigation. Cosmos is providing every kind of support to
all the regulatory bodies both at National level and International level.

13. The ACC has exercised its powers to club matters together and asked
both WorldCom and Uniphone’s matter (Misuse of Dominant Position) and

MEMORIAL ON BEHALF OF APPELLANTPage 9

Virgino telecom, Inrich Cellular and Airfree Cellular’s matter (mala fide
Acquisition) to file brief written submissions covering their arguments in
relation to both matters.

14. On 10th March 2019, ACC gave its ruling and denied all the allegations
of; WorldCom and Uniphone regarding misuse of dominant position and
Virgino Telecom, Inrich Cellular and Airfree Cellular’s regarding the mala fide
acquisition.

15. Meanwhile, the Investigation Bureau has issued its investigation report
wherein it has concluded that the allegations made by WorldCom and
Uniphone against Cosmos are correct.

16. WorldCom and Uniphone have decided to go against the decisions of the
ACC and have appealed to the Atlantis Appellate Tribunal (APT) on 1st May,
2019.
17. Virgino Telecom, Inrich Cellular and Airfree Cellular have also decided to
be party to the above said appeal and moved an application regarding the
same before the Tribunal.

18. On 26th July, 2019, the Appellate Tribunal ruled in favor of the
applicants and therefore, Sigma and its subsidiary company; Cosmos,
preferred an appeal within the limitation period before the Hon’ble
Supreme Court, against the ruling of the tribunal. The Supreme Court has
decided to take up the matter on the 10th of October, 2019.

MEMORIAL ON BEHALF OF APPELLANTPage 10

 STATEMENT OF ISSUES

1. Whether the appeal is maintainable before the Hon'ble Supreme

Court?

2. Whether cosmos is in a dominant position or not?

3. Whether the misuse of the dominant position is a direct violation of;

 Article 19 (1)(g) and 39 (b) and (c) of the Constitution; and

 The Atlantis Competition Commission Act, 2002?

4. Whether the acquisition of the Virgino Telecom, Inrich Cellular and

Airfree Cellular by Cosmos, is good in the eye of law?

5. Whether cosmos is establishing its monopoly through misuse of its

dominant position?

MEMORIAL ON BEHALF OF APPELLANTPage 11

 SUMMARY ARGUMENTS

Contention 1
1. Whether the appeal is maintainable before the Hon'ble Supreme Court?

Yes, the appeal is maintainable as every aggrieved party has right to

appeal in the higher courts if justice is not served or if decision is not
justifiable, and the allegations made by the respondents are not true.

Contention 2
2. Whether cosmos is in a dominant position or not?
As Cosmos is a new subsidiary company of the Sigma Groups providing 5g
services in Atlantis. It is a new entrant in a market and such short-term
business strategy of an entrant to penetrate the market and establish its
identity cannot be considered to be anti-competitive in nature and as such
cannot be a subject matter of investigation.

Contention 3

3. Whether the misuse of the dominant position is a direct violation of;

 Article 19 (1)(g) and 39 (b) and (c) of the Constitution; and

 The Atlantis Competition Commission Act, 2002?

There is no misuse of dominant position or violation of article 19(1) (g)

and 39(b) and (c) of the constitution and the ACC, 2002, acquisition of
any company through any agreement cannot be stated as
anticompetitive, cosmos had agreement with three companies with their

MEMORIAL ON BEHALF OF APPELLANTPage 12

 confirmation on the agreement, if confirmation is once given then later it
cannot be stated as violation of any act.

Contention 4
4. Whether the acquisition of the Virgino Telecom, Inrich Cellular and
Airfree Cellular by Cosmos, is good in the eye of law?

Cosmos acquired these companies from the context of its business strategy
and as mentioned in the facts out of 12 operators only 5 survived and these
three companies were having very low amount of share in the market and
were about to be vanished and before it happens so cosmos took over these
companies mutually for good, so that both can be benefitted.
As mentioned in facts future belongs to those which are running on 5g
network and these companies were not able to buy 5g spectrum because of
very high biding price, so cosmos acquired these companies and provided
them their price.

Contention 5

5. Whether cosmos is establishing its monopoly through misuse of its

dominant position?

Firstly, cosmos is not in a dominant position and cosmos is first and only sole
provider of 5g spectrum it is not a anti competitive act or act to establish
monopoly, cosmos won the auctions of 5g spectrum and established its
identity in the telecom market and became the first company to provide 5g
spectrum and as mentioned in facts other companies were not ready to pay
such a high bid price for 5g spectrum.

MEMORIAL ON BEHALF OF APPELLANTPage 13

 ARGUMENT ADVANCED

Contention 1
1. Whether the appeal is maintainable before the Hon'ble Supreme Court?

1.1) Yes the appeal is maintainable as every aggrieved party is entitled for
the appeal and the allegations laid on appellants is not correct as the
appellant is nowhere misusing dominant position because it is not in the
dominant position in the first place it is a new entrant and practicing its
business strategy to increase its business.

Contention 2
1. Whether cosmos is in a dominant position or not?

2.1) As Cosmos is a new subsidiary company of the Sigma Groups

providing 5g services in Atlantis. It is a new entrant in a market and such
short-term business strategy of an entrant to penetrate the market and
establish its identity cannot be considered to be anti-competitive in
nature and as such cannot be a subject matter of investigation.

2.2) In a 5G spectrum auction, Cosmos won the race and purchased one
of the spectrums. Owing to high price of the bid many business groups
did not participate and those who did were not ready to pay a base bid
price as high as 5.77 Lakh Crore Atlantis Rupee (expected revenue).

2.3) Where there are already big players operating in the market, it
would not be “anti-competitive for an entrant to incentivize customers
towards its own services by giving attractive offers and schemes.”

MEMORIAL ON BEHALF OF APPELLANTPage 14

 Contention 3
3. Whether the misuse of the dominant position is a direct violation of;

 Article 19 (1)(g) and 39 (b) and (c) of the Constitution; and

 The Atlantis Competition Commission Act, 2002?

Article 19(1) of The Constitution Of India 1949

(1) All citizens shall have the right
(g) To practise any profession, or to carry on any occupation, trade or
business.

Article 39 of The Constitution Of India 1949

39. Certain principles of policy to be followed by the State: The State
shall, in particular, direct its policy towards securing
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;

There is no violation of article 19(1) (g) and article 39(b) and (c) of the
Indian Constitution and nor the violation of Atlantis Competition
Commission Act, 2002. Appellant did not restrained any of the company
to practice its profession, and no anti competitive agreement has been
made by the appellants as the companies had their agreement mutually
and had their confirmation for the agreement to appellant then later it
cannot be stated as violation of constitution or ACC.

MEMORIAL ON BEHALF OF APPELLANTPage 15

 Contention 4
4. Whether the acquisition of the Virgino Telecom, Inrich Cellular and Airfree
Cellular by Cosmos, is good in the eye of law?

4.1) Cosmos acquired these companies from the context of its business
strategy and as mentioned in the facts out of 12 operators only 5 survived
and these three companies were having very low amount of share in the
market and were about to be vanished and before it happens so cosmos
took over these companies mutually for good, so that both can be
benefitted.
4.2) As mentioned in facts future belongs to those which are running on 5g
network and these companies were not able to buy 5g spectrum because of
very high biding price, so cosmos acquired these companies and provided
them their price.

Contention 5

5. Whether cosmos is establishing its monopoly through misuse of its

dominant position?

Firstly, cosmos is not in a dominant position and cosmos is first and only sole
provider of 5g spectrum it is not a anti competitive act or act to establish
monopoly, cosmos won the auctions of 5g spectrum and established its
identity in the telecom market and became the first company to provide 5g
spectrum and as mentioned in facts other companies were not ready to pay
such a high bid price for 5g spectrum.

Where there are already big players operating in the market, it would not be
“anti-competitive for an entrant to incentivize customers towards its own
services by giving attractive offers and schemes.” And it cannot be said that
cosmos is establishing its monopoly rather it is a business strategy.

MEMORIAL ON BEHALF OF APPELLANTPage 16

 PRAYER

In the light of the issues raised, arguments advanced and authorities cited,
may this hon’ble court be pleased to:

1. Remove all the allegations regarding dominant position and

establishment of monopoly.

2. Review the decision of Atlantis Appellate Tribunal.

MEMORIAL ON BEHALF OF APPELLANTPage 17