20 Op

20 OP
CCI- HNLU XIITH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT

COMPETITION, 2022
Before
THE COMPETITION APPELLATE TRIBUNAL OF RURITANIA
Competition Appeal (AT) No.___/2022

ROARK INDUSTRIES INC APPELLANT 1
BRILLANTE TECHNOLOGIES PRIVATE LIMITED APPELLANT 2
VERSUS
COMPETITION COMMISSION OF RURITANIA RESPONDENT
Appeal Filed under § 53-B of the Competition Act, 2002
MEMORIAL for the RESPONDENT

COMPETITION, 2022
CONTENTS
1. INDEX OF AUTHORITIES ............................................................................................ 3
2. STATEMENT OF JURISDICTION ............................................................................... 8
THE RESPONDENT SUBMITS TO THE JURISDICTION OF THIS HON’BLE

COURT UNDER §53-B OF THE COMPETITION ACT, 2002. IT IS AS FOLLOWS: ... 8
3. STATEMENT OF FACTS ............................................................................................... 9
BACKGROUND OF COMPANIES ....................................................................................... 9
AFTERMATH OF DAWN RAID ........................................................................................... 9
FINAL ORDER ....................................................................................................................... 10
4. STATEMENT OF ISSUES ............................................................................................ 11
5. SUMMARY OF ARGUMENTS .................................................................................... 12
6. PLEADINGS ................................................................................................................... 14
ISSUE 2: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

DURING THE DAWN RAID AND DEPOSITION?........................................................... 15
2.1 NO EXPLICIT PROVISION FOR PROVIDING A LEGAL COUNSEL IN THE

COMPETITION ACT ........................................................................................................ 15
2.2 PRINCIPLES OF NATURAL JUSTICE NOT VIOLATED .................................... 16
3.1 AN AGREEMENT IS RESTRICTED BY THE NATURE OF ITS OBJECT ....... 17
3.2 THE INFORMATION EXCHANGED IS COMERCIALLY SENSITIVE IN

NATURE .............................................................................................................................. 18
3.3 RESTRICTION BY THE OBJECT OF EXCHANGE OF COMMERCIALLY

SENSITIVE INFORMATION IS IN CONTRAVENTION TO § 3(3) OF THE
COMPETITION ACT ........................................................................................................ 21
3.4 THE AGREEMENT BETWEEN ROARK AND GENZ CONTRAVENS § 3(1) OF

THE ACT ............................................................................................................................. 23
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MEMORIAL FOR THE RESPONDENT

COMPETITION, 2022
ISSUE 4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED

IN REFUSAL TO DEAL? ...................................................................................................... 23
4.1 THE RELEVANT MARKET IS MANUFACTURING OF CHIPS USING AI

SOLUTIONS IN THE DEFENSE SECTOR IN RURITANIA....................................... 24
4.2 BRILLANTE IS A DOMINANT PLAYER IN THE RELEVANT MARKET ....... 25
4.3 BRILLANTE BY ABUSING ITS DOMINANT POSITION HAS VIOLATED §

4(2)(C) OF THE ACT.......................................................................................................... 27
4.4 THE AGREEMENT BETWEEN BRILLANTE AND ROARK VIOLATES § 3(4)

READ WITH § 3(1) OF THE ACT ................................................................................... 29
7. PRAYER .......................................................................................................................... 34
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INDEX OF AUTHORITIES
1. INDIAN CASES
2. Air Cargo Agents Association Of India v. International Air Transport Association, 2015
CCI 130 ............................................................................................................................. 30
3. Ambuja Cements Limited v. Competition Commission of India & Ors., 22-26/2017 ..... 20
4. Atos Worldline v. Verifoneindia, Case No. 56 of 2012 (decided on 10.04.2015) ........... 22
5. Automobiles Dealers ... v. 1. Global Automobile..., Case No. 33/2011 (decided on
03.07.2012) ....................................................................................................................... 29
6. Baxalta Incorporated, 2015 SCC ONLINE CCI 152 ; Future Consumer Enterprise
Limited, IN RE, 2016 SCC ONLINE CCI 113 ................................................................ 13
7. CCI v. Fast Way Transmission (P) Ltd., (2018) 4 SCC 316, ¶16..................................... 26
8. Commission Notice on the definition of relevant market for the purposes of Community
Competition Law, (97/C372/03) ....................................................................................... 22
9. Competition Commission Of India v. Grasim Industries Ltd . , 2019 SCC OnLine DEL
10017................................................................................................................................. 13
10. Competition Commission of India v. Steel Authority Of India Limited And Another,
2010 SCC 10 744 .............................................................................................................. 14
11. Department Of Agriculture v. M/S Mahyco Monsanto Biotech, 2016 SCC ONLINE CCI
93....................................................................................................................................... 21
12. Diasys Diagnostics India Private Limited, IN RE, 2015 SCC ONLINE CCI 260 ........... 13
13. Dunlop Rubber Co. (India) Ltd. v. Workmen, AIR 1965 SC 1392 .................................. 14
14. Esys Information Technologies Pvt. Ltd. V. Intel Corporation, 2014 SCC ONLINE CCI
10....................................................................................................................................... 23
15. Ficci - Multiplex Association Of India v. United Producers, 2011 SCC ONLINE CCI 33
........................................................................................................................................... 21
16. Future Consumer Enterprise Limited, IN RE, 2016 SCC ONLINE CCI 113 .................. 13
17. Hemraj Electronics v Monika Electronics Pvt Ltd, RTP Enquiry No 93/1985 (MRTPC),
order dated 9 January 1986 ............................................................................................... 27
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18. In Re: Alleged anti-competitive conduct in the Beer Market in India, Suo Motu Case No.
06 of 2017 ......................................................................................................................... 20
19. In Re: Cartelisation in Industrial and Automotive Bearings and Ors, 2020 SCC ONLINE
CCI 19 ............................................................................................................................... 20
20. In Re: Garware Plastics Polyster Ltd, RTP Enquiry No 1272/1987, order dated 5 October
1987................................................................................................................................... 28
21. Intellect Design Arena Limited, In Re, 2018 SCC OnLine CCI 36 ................................. 13
22. Jindal Steel & Power Ltd. v. Steel Authority of India Ltd., [2012] 107 CLA 278 (CCI) 28
23. Jsw Paints Private Limited Informant V. Asian Paints Limited Opposite Party. 2020 SCC
ONLINE CCI 1 ................................................................................................................. 28
24. Jupiter Gaming Solutions Private Limited V. Secretary, Finance Government Of Goa
2011 SCC ONLINE CCI 24 ............................................................................................. 26
25. Kshitij Ranjan Informant v. Indian Newspaper Society Opposite Party., 2011 CCI 67... 29
26. Maneka Gandhi v. Union of India and Another, 1978 SCC 1 248 ................................... 14
27. Matrimony.com Ltd. v. Google India (P) Ltd., Case No. 07 and 30 of 2012 (CCI). ........ 21
28. MCX STOCK EXCHANGE LTD., INFORMANT V. NATIONAL STOCK
EXCHANGE OF INDIA LTD. 2011 SCC ONLINE CCI 52 : 2011 CCI 52 .................. 23
29. Mr. Jyoti Swaroop Arora Informant v. M/S Tulip Infratech Pvt. Ltd., 2011 CCI 14 ....... 29
30. N. Kalindi And Others v. Tata Locomotive & Engineering Co., Ltd., Jamshedpur, 1960
AIR SC 914 ....................................................................................................................... 13
31. National Stock Exchange Of India Ltd. V. Competition Commission Of India 2014 Scc
OnLine Comp AT 37 2014 COMP AT 129.................................................................. 24
32. Poolpandi And Others / v. Superintendent, Central Excise And Others, 1992 AIR SC
1795................................................................................................................................... 14
33. Rajasthan Marudhara Gramin Bank (Rmgb) And Another (S) v. Ramesh Chandra Meena
And Another (S)., 2022 SCC ONLINE SC 9 ................................................................... 15
34. Re Saurashtra Ballpen Pvt Ltd, RTP Enquiry No 156/1986, order dated 20 March 1987 27
35. Reydel Automotive Holdings B.V., IN RE (Combination Registration No.C-
2015/08/298), 2016 SCC ONLINE CCI 143 .................................................................... 13
36. Shamsher Kataria Informant v Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI). ...... 27
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COMPETITION, 2022
37. Sudhir Kumar Aggarwal v. Directorate General Of Gst Intelligence., 2019 SCC ONLINE
DEL 11101. ....................................................................................................................... 14
38. Sunil Bansal And Ors. V.. M/S Jaiprakash Associates Limited And Another, Appeal No.
4 21/2016 on 28.09.2016 .................................................................................................. 24
39. Surajmull Nagarmull And Others v. The Commissioner Of Income Tax ., 1961 AIR CAL
578..................................................................................................................................... 15
40. Surinder Singh Barmi v. Board Of Control For Cricket In India, 2017 SCC OnLine CCI
57....................................................................................................................................... 29
41. Telefonaktiebolaget Lm Ericsson (Publ) Petitioner v. Competition Commission Of India
And Another S, 2016 SCC OnLine DEL 1951 ................................................................. 21
42. The Chairman, SEBI v Shriram Mutual Fund, AIR 2006 SC 2287 ................................. 13
43. Tushar Kanti Dhingra v. Universal BuildWell, 2013 SCC OnLine CCI 28 ..................... 25
1. FOREIGN CASES
2. Advocate General Kokott, Case C-8/08............................................................................ 19

3. American Column and Lumber Co v. US, 257 US 377 (1921, at 398-99). ...................... 18
4. Browner Case, Case T-201/04, Microsoft v.. Commission, Judgment of 17/09/2007, ECR
[2007] II-3601,Sealink ...................................................................................................... 26
5. Case COMP/M. 1672, Volvo/Scania [2001] O.J. L 143/74, ¶56 ..................................... 22
6. Commission Decision, UK Agricultural Tractor Exchange, [1992] OJ L 68/19.............. 17
7. i MCI Commc'ns Corp. v. AT&T, 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891
(1983) ................................................................................................................................ 25
8. IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, Case C-418/01, 2004
E.C.R. 1-5039 ................................................................................................................... 25
9. Istituto Chemioterapico Italiano S.p.A. and Commercial Solvents Corporation v
Commission of the European Communities. Joined cases 6 and 7-73. European Court
Reports 1974 -00223 ......................................................................................................... 24
10. JJB Sports plc v. Office of Fair Trading and Allsports Limited v. Office of Fair
Trading, [2004] CAT 17 ................................................................................................... 18
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11. Joined cases T-191/98, T-212/98 and T-214/98, Atlantic Container Line (TACA), in
[2003] ECR II- 3275, paragraph 1154 .............................................................................. 18
12. Joined Cases T-25/95 and others, Cimenteries, [2000] ECR II-491................................. 19
13. Radio Telefis Eireann v Commission of the European Communities, Joined Cases C-241
and 242/91P, [1995] ECR I-743 : [1995] All ER (EC) 416.............................................. 25
14. Societe Technique Miniere v Machinene bau ulm GmbH, 1666 ECR 235 ...................... 15
15. United Brands Company and United Brands Continental BV v Commission of the
European Communities. -[1978] ECR 207 ....................................................................... 25
16. United States v. American Linseed Oil Co., 262 U.S. 371 (1923) ................................... 19
17. United States v. United States Gypsum Co., 438 U.S. 422 (1978) ................................... 18
18. US v. Container Corporation of America et al, 393 US 333 (1969) ................................ 19
19. Wirtschaftsvereinigung Stahl, (98/4/ECSC) ..................................................................... 19
STATUTES, REGULATIONS, AND TREATIES
1. Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
2. The Companies Act, 2013, §179, No. 18, Acts of Parliament, 2013 (India).
3. Sale of Goods Act, 1930, No. 03, Acts of Parliament, 1930 (India).
4. The Advocates Act, 1961, § 30, No. 25, Acts of Parliament, 1961 (India).
5. Sherman Act, 15 U.S.C. §1 (1890)
6. The Competition Commission of India (General) Regulations, 2009.
7. The Competition Commission of India (Procedure in regard to the transaction of business
relating to combinations) Regulations, 2011.
8. Council Regulation (EC) No. 139/2004, OJ L 024.
9. Treaty on The Functioning of European Union.
BOOKS
1. SM DUGAR, GUIDE TO COMPETITION LAW (Lexis Nexis 2016)
2. GAUTAM SHAHI AND DR. SUDHANSHU KUMAR, INDIAN COMPETITION LAW
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COMPETITION, 2022
137 (Taxmann 2021)
3. ALISON JONES, BRENDA SUFRIN, NIAMH DUNNE, EU COMPETITION LAW:
TEXTS, CASES, AND MATERIALS 494, (ed. 2019)
4. F. WIJCKMANS, &F. TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU
COMPETITION LAW (2 nd edn. 2011)
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COMPETITION, 2022
STATEMENT OF JURISDICTION
THE RESPONDENT SUBMITS TO THE JURISDICTION OF THIS HON’BLE COURT

UNDER §53-B OF THE COMPETITION ACT, 2002. IT IS AS FOLLOWS:
“Appeal to Appellate Tribunal

(1) The Central Government or the State Government or a local authority or enterprise or any
person, aggrieved by any direction, decision or order referred to in clause (a) of § 53-A may
prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-§ (1) shall be filed within a period of sixty days from the date on
which a copy of the direction or decision or order made by the Commission is received by the
Central Government or the State Government or a local authority or enterprise or any person
referred to in that sub-§and it shall be in such form and be accompanied by such fee as may be
prescribed : Provided that the Appellate Tribunal may entertain an appeal after the expiry of the
said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that
period.
(3) On receipt of an appeal under sub-§ (1), the Appellate Tribunal may, after giving the parties
to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or setting aside the direction, decision or order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and
the parties to the appeal.
(5) the appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it
as expeditiously as possible and endeavor shall be made to dispose of the appeal within six
months from the date of receipt of appeal.”
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STATEMENT OF FACTS
BACKGROUND OF COMPANIES
 Roark is a U.S. based multinational company in the manufacture of chips used in anti-
ballistic missiles and other air defense systems.
 Brillante is a company known for its innovations in Artificial Intelligence (AI). Brillante
developed a patented AI technology with pathbreaking applications in chip
manufacturing industry. By 2019, almost all major chip manufacturers servicing the
defense sector were using Brillante‟s technology in their production lines.
 Brillante was acquired by Roark in March 2021 including its subsidiary in Ruritania.
 Atlas is a Ruritarian defense technology company which manufactures chips in the air
defense sector and also provides AI solutions for the same.
 GENZ is a competitor of Roark in the chip manufacturing industry. Roark is a minority
shareholder in GENZ, with 9.5 percent of the company's shareholding in addition to
Ruritarian CEO of Roark holding director seat of GENZ in his personal capacity.
DAWN RAID
Shortly after the said acquisition, officials from the CCR conducted “dawn raid” on Roark‟s
Ruritarian offices and Roark‟s lawyers were denied entry by CCR officials but till then CCR
officials had already deposed Roark‟s top officials. Roark‟s Ruritarian CEO deposed that Roark
had shared certain information, relating to pricing strategy and customer retention policies, with
GENZ.
During the raid, it was found that Brillante reached out to various competitors of Roark to
renegotiate the terms of use and license of its AI technology and suggested a sudden increase in
license fee. Some emails also suggested that Brillante was intentionally delaying these
negotiations. The CCR also found a letter from one of Brillante‟s employees to its compliance
officer suggesting that Roark had pressured Brillante to provide MFN treatment to GENZ.
AFTERMATH OF DAWN RAID
As a result of the dawn raid, the CCR was also made aware of Roark‟s acquisition of Brillante.
The CCR issued a Show Cause Notice, asking Roark why gun-jumping proceedings should not
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be initiated against it. The CCR did not find Brillante to prima facie enjoy a dominant position
and ordered the DG to investigate whether Brillante had engaged in refusal to deal.
FINAL ORDER
After dawn raid and investigation by the DG, CCR passed the order:
 The direct and indirect exchange of information on pricing trends and strategy between
Roark and GENZ amounted to cartelization.
 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.
 CCR officials did not err by conducting depositions in the absence of Roark‟s lawyers.
The CCR also considered Roark‟s submissions with regard to gun-jumping proceedings and
observed that Roark was required to notify its acquisition of Brillante as consolidated financial
statements of its Indian subsidiaries, which comprised financials from its offshore companies,
were necessary to be reviewed.
Hence, the present appeal is preferred before the Hon‟ble Competition Appellate
Tribunal (COMPAT) against the order passed by the CCR.
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STATEMENT OF ISSUES
ISSUE 1: WAS THE CCR CORRECT IN FINDING THAT ROARK WAS REQUIRED
TO HAVE NOTIFIED ITS ACQUISITION OF BRILLANTE?
ISSUE 2: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT DURING
THE DAWN RAID AND DEPOSITION?
ISSUE 3: WAS THE CCR CORRECT IN PENALISING ROARK FOR EXCHANGE OF

INFORMATION/ CARTELISATION?
ISSUE 4: WAS CCR CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN

REFUSAL TO DEAL?
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SUMMARY OF ARGUMENTS
It is humbly submitted that in the present case, turnover will be in accordance to its definition in
the act which would be the value of turnover in books which as per the accounting standards
would include the revenue of Brillante Ruritania including its offshore subsidiary which would
exceed the de minis threshold making the combination mandatory to notify.
It is humbly submitted that due to lack of any statutory obligations there lies no right of any legal
representation at dawn raid, further at an investigation stage PNJ could be suspended when there
could be some interference with the investigation thus Roark did not have any right to have a
lawyer present during raid and deposition.

It is humbly submitted that various jurisdictions hold the object of the agreement to be of
paramount importance and place restriction upon the object in the said agreement, the object
being sharing of commercially sensitive information would amount to cartelization and further
cause AAEC in market thus violating sec 3(4) read with sec 3(1).

REFUSAL TO DEAL?
It is humbly submitted that Brillante is a dominant player in the market of manufacturing of
chips in the defense sector of Ruritania and by committing refusal to deal with Roark‟s
competitors has caused a denial in market access this abusing its dominant position. Further,
Brillante has engaged in refusal to deal by not supplying its product to Roark‟s competitors in the
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upstream market causing AAEC in the market ,further no defense of sec 3(5) would be
applicable to Brillante since it has imposed unreasonable conditions on its patent.
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PLEADINGS
1. It is humbly submitted that since the combination of Roark and Brillante crosses its
jurisdictional thresholds1 under § 5 of the act, the respite which could be sought by the
company pertains to the de minis exemption2 which reads as:
“… [w]here the value of assets being acquired, taken control of, merged or
amalgamated is not more than rupees three hundred and fifty crores in India or
turnover of not more than rupees one thousand crores in India, from the provisions of §
5 of the said Act for a period of five years from the date of publication of this
notification in the official gazette”
2. A perusal of the § holds the turnover of the company holds great importance for de
minimis to apply and the definition of turnover has been given under Explanation (c) to §
5 of the Act3
“[t]he value of assets shall be determined by taking the book value of the assets as shown,
in the audited books of account of the enterprise,”.
3. In order to determine the book value of the turnover, due regard needs to be given to
Regulation 8 of the Combination Regulations4 which clearly defines the word
”Aggregated turnover” for the enterprises, in order to calculate the aggregated turnover
due regard needs to be given to AS 215 which prescribes the standard procedure for
preparing consolidated financials as well as US GAAP Guide 12.2 which lays down a
similar rule, applying these accounting standards is imperative to note the revenue of any
subsidiary in the parent companies turnover as well.
4. This interpretation is in line with the decisional practice of CCI as well, where CCI
observed that the statutory definition of turnover under the Competition Act does not
1
List of Clarifications, No. 29 at pg. no 4.
2
Notification S.O. 988(E), Ministry of Corporate Affairs, issued 27 th March, 2017.
3
The Competition Act, 2002, Explanation (c) - § 5, No. 12, Acts of Parliament, 2002 (India).
4
CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, Rule 8
5
Segment Reporting, Accounting Standard (AS) 21, available at
https://www.mca.gov.in/Ministry/notification/notification_comp_Acct.html .
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mean turnover as reported for a particular geographic segment, but the entire turnover
value as provided in the books of accounts of the enterprise concerned should be
considered.6 Further, the CCI in various cases have held the definition of turnover except
its book value is unsustainable7.
5. Further the Hon‟ble Supreme Court has held in The Chairman, SEBI v Shriram Mutual
Fund and Anr8 that “the penalty is attracted as soon as contravention of the statutory
obligations as contemplated by the Act is established”.
6. It is humbly submitted that since the turnover has to be taken into account as the book
value of the assets which as per the accounting standards are the consolidated financials of
Brillante Ruritania includes the revenue of its offshore subsidiary, Brillante Specialties
Private Limited, which sums up to Rs. 1080 Crores, exceeding the exemption limit by Rs.
80 Crores.
7. In light of the arguments advanced and the cases cited, Roark was required to notify its
acquisition of Brillante.
2.1 NO EXPLICIT PROVISION FOR PROVIDING A LEGAL COUNSEL IN THE

COMPETITION ACT
8. It is humbly contended that the dawn raids of the CCI are governed by § 419 which
confers the DG with the same powers as an investigator under § 240A and § 241 of the
erstwhile Companies Act, 1956 during search and seizure, it has been held that DG has
been conferred wide powers under the act10,enabling it to act in the interest of consumers
which are to be protected by the CCI as stated by is Preamble11 and it is submitted that an
interference with that right would be in detriment of the consumers which the very act is
trying to protect.
6
Intellect Design Arena Limited, In Re, 2018 SCC OnLine CCI 36.
7
Reydel Automotive Holdings B.V., IN RE (Combination Registration No.C-2015/08/298), 2016 SCC ONLINE
CCI 143 ; Baxalta Incorporated, 2015 SCC ONLINE CCI 152. ; Future Consumer Enterprise Limited, IN RE, 2016
SCC ONLINE CCI 113; Diasys Diagnostics India Private Limited, IN RE, 2015 SCC ONLINE CCI 260.
8
The Chairman, SEBI v Shriram Mutual Fund, AIR 2006 SC 2287.
9
The Competition Act, 2002, § 3(4), No. 12, Acts of Parliament, 2002 (India).
10
Competition Commission Of India v. Grasim Industries Ltd . , 2019 SCC OnLine DEL 10017.
11
The Competition Act, 2002, Preamble, No. 12, Acts of Parliament, 2002 (India).
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9. Further, it is submitted that where the statue is silent upon the right to a legal
representative, the view that principles of natural justice are a matter of right cannot be
claimed12,This principle has been used in determining the very said issue under different
laws in India such as in the Poolpandi Case13 wherein the presence of a lawyer during an
investigation and inquiry stage was not allowed due to lack of any statutory provision, this
case has been used as a precedent in various cases such as during a search and seizure
under the CGST Act, 2017 without a legal representative was held to be valid as no
statutory provision could be made out for the same14.
10. This was reiterated by the court in the case of the Dunlop Rubber Co. (India) Ltd15. After
considering its earlier decision in the case of, it is observed and held that there is no per se
right to representation in the departmental proceedings through a representative through its
own union unless the company by its Standing Order recognized such a right.
11. In the present case, dawn raid during raid was conducted with taking appropriate
warrants16. Thus DG had been conferred wide powers to take statements under oath as
well as conduct the dawn raid in the manner prescribed by the act.
12. It is humbly submitted that there does not lie any statutory or express provision either in
the competition act as well as the regulations therefore it is merely an obligation to wait
for a legal representative and is in no way bound to do so.
2.2 PRINCIPLES OF NATURAL JUSTICE NOT VIOLATED
13. It is submitted that in the case of Maneka Gandhi was Union of India17 the court dealt
with the issue of when the principles of natural justice can be excluded and held “where
an obligation to give notice and opportunity to be heard would obstruct the taking of
prompt action, especially action of a preventive or remedial nature, right of prior notice
and opportunity to be heard may be excluded by implication”, CCI v. Sail18 expanding the
same principle in the lens of competition law held While restricting the application of
natural justice in case an order for investigation is passed under § 26(1), the Court
12
N. Kalindi And Others v. Tata Locomotive & Engineering Co., Ltd., Jamshedpur, 1960 AIR SC 914.
13
Poolpandi And Others / v. Superintendent, Central Excise And Others, 1992 AIR SC 1795.
14
Sudhir Kumar Aggarwal v. Directorate General Of Gst Intelligence., 2019 SCC ONLINE DEL 11101.
15
Dunlop Rubber Co. (India) Ltd. v. Workmen, AIR 1965 SC 1392.
16
List of Clarifications, No. 32 at pg. no 4.
17
Maneka Gandhi v. Union of India and Another, 1978 SCC 1 248.
18
Competition Commission of India v. Steel Authority Of India Limited And Another, 2010 SCC 10 744.
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observed that natural justice can be excluded at the initial stages where the opportunity of
being heard would obstruct the taking of prompt action, similarly in case of an internal
enquiry.
14. Further it is submitted that a search and seizure operation should have an element of
surprise which is vital, and avoid giving opportunity to the assesse to remove the
offending books and documents, after coming to know of the proposed search.19. Further,
the apex court while dealing with solemn nature of proceedings is taken away and would
result in issues of orderliness as well as decorum20.
15. In the present case it is humbly submitted that the lawyers the dawn raid being at such a
vital and early stage needed an element of surprise, as well as having a legal representative
could hamper the proceedings, thus principles of natural justice could be suspended.
16. In light of the arguments cited and the cases advanced above it is humbly submitted that
DG had every right of not letting Roark‟s lawyers in during the dawn raid21 due to statute
being silent on the presence of a legal representative as well as principles of natural justice
could be suspended at an early stage thus are not violated.
17. It is humbly submitted that § 3(1) read with § 3(3) gives the scope of agreements
particularly horizontal which are likely or cause an appreciable adverse effect on the
competition including cartels agreements and the conduct expressed by them, In the
present case it is humbly contended that Roark has exchanged commercially sensitive
information which is an activity done under the said provisions by a cartel and need to be
thoroughly examined.
3.1 AN AGREEMENT IS RESTRICTED BY THE NATURE OF ITS OBJECT
18. Further any other act even likely to cause Appreciable adverse effect on competition has
been prohibited under law; in this case the object of the said agreement to cause AAEC on
the competition has been held to be of paramount value.
19
Surajmull Nagarmull And Others v. The Commissioner Of Income Tax ., 1961 AIR CAL 578.
20
Rajasthan Marudhara Gramin Bank (Rmgb) And Another (S) v. Ramesh Chandra Meena And Another (S)., 2022
SCC ONLINE SC 9.
21
Moot Proposition, ¶7.
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19. The definition of object has been defined under different provisions and due application of
them need to be done in order to infer the said object of the given agreement. It is humbly
submitted that the definition of object evolved from the landmark case of S
22
T M C defined the basic guidelines of the concept „object
restriction ‟. In this case it established that an agreement is considered to be restrictive by
object when the analysis of its clauses „reveals the effect on competition to be sufficiently
deleterious”.
20. This case paved the way for the commission to give due attention to the said concept and
defined it under the TFEU act where the commission defines described „restrictions by
object‟ as “According to the Commission, „these are restrictions which in light of the
objectives pursued by the Community competition rules have such a high potential of
negative effects on competition that it is unnecessary for the purposes of applying article
101(1) to demonstrate any actual effects on the market”23.
21. Further in the case of T-Mobile Netherlands BV and others v Raad van bestuur van de
Nederlandse Mededingingsautoriteit C-8/08, ECR I-4529, only arrangements or practices
that restrict competition “by their very nature” were considered as object cases.
22. Thus from the cases and the explanation from the commission cited above an object of the
agreement is defined as any arrangement which reveals that such arrangement if applied
would cause a negative effect on competition law, In the present case the arrangement of
information exchange has to be viewed as the object of the said agreement.
23. It is humbly submitted that after the said object of the given arrangement has been defined
i.e. information exchange, the said objects impact on competition law has to be
determined in order to assess its negative effects.
3.2 THE INFORMATION EXCHANGED IS COMERCIALLY SENSITIVE IN NATURE
24. It is humbly submitted that E.U jurisdiction which holds a high persuasiveness in the
courts of Ruritania explicitly states the objects which are banned under the given law in
the Guidelines of TFEU on article 101(1) as information exchange as an instance of a
horizontal agreement which should be banned per se under law further it has been
explained under the same guidelines under article 101(3) which provides as:
22
Societe Technique Miniere v Machinene bau ulm GmbH, 1666 ECR 235
23
Guidelines on the application of Article 101(3) TFEU (n 18) para 21.
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“Communication of information among competitors may constitute an agreement, a concerted

practice or a decision with the object of fixing prices or quantities. Such types of information
exchange will normally be considered and fined as cartels.”24
25. Similarly, the United States in the U.S. Federal Trade Commission and the U.S.
Department of Justice (the „DOJ‟) issued the Antitrust Guidelines for Collaborations
among Competitor25 laid down clearly the types of information which would have an
anticompetitive effect on competition.
26. These Guidelines clearly underline the need to hold enterprises engaging in information
exchange with any such object relating to price or quantity fixing or manipulation in an
way this has been expounded in various case laws such as in T-Mobile Netherlands, its
most recent judgment in this area, the CJEU took a strict view on information exchanges.
27. The Court held that “[...] an exchange of information which is capable of removing
uncertainties between participants as regards the timing, extent and details of the
modifications to be adopted by the undertaking concerned must be regarded as pursuing
an anti-competitive object, [...].” The Court also confirmed that even a limited exchange
of information between competitors, concerning matters other than prices to customers
and in the context of a single meeting, can infringe the competition rule.
28. In the Commission decision on the UK Tractors26case, where eight manufacturers and
importers of agricultural tractors exchanged, over an extended period of time, some
historical sales data. This decision was appealed, and the Court of First Instance (CFI),
now called the General Court, ruled that the information exchange system regarding
historical sales data had an anti-competitive effect.
29. Further In the 1994 Cartonboard decision the European Commission ordered the parties
to cease the exchange of commercial information on deliveries, prices, plant standstills,
order backlogs and machine utilization rates in support of other restrictions of Article 101
TFEU, even if exchanged in the form of aggregated statistic.
24
Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to
horizontal co-operation agreements, 2011/C 11/01
25
Ibid.
26
Commission Decision, UK Agricultural Tractor Exchange, [1992] OJ L 68/19.
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30. Also, the US Supreme Court in its leading case27 was mostly concerned with the exchange
of price and output information; particularly, when the exchange included “suggestions as
to both future prices and production” to be of commercially sensitive in nature and further
the court elucidated that the information exchange exchanged to be private instead of
public as a relevant factor to be considered as the intention of causing a negative effect on
competition.
31. The principle of private information exchanged having a higher value than public
information has been evolved in various cases28. In another noteworthy judgment the
court in the case of US v United States Gypsum Co29 laid an important ratio as:
“Exchanges of current price information, of course, have the greatest potential for
generating anticompetitive effects and although not per se unlawful have consistently
been held to violate the Sherman Act”. Further in the Replica Football Case30 informal
meeting to monitor retail customers was held to be an aid for price fixing and held the
information nature to be pertinent in nature.
32. Thus, it is humbly submitted that in lieu of the cases and the guidelines cited above the
relevant factors to be considered for the information to be commercially sensitive some
of the relevant factors are:
● The subject matter-Any matter containing price, production or supply value to be of

sensitive in nature and have a high degree of causing a negative anticompetitive effect.
● Sharing of individual company data in a private and an unofficial exchange to be held to
be of highly sensitive in nature.
● Any policy shared which acts a supplement to commercially sensitive information would
be held primarily cause anti-competitive effect.
33. It is humbly submitted that in the present case:
● It is humbly submitted that in the present case the information shared relates to pricing
strategy in its true sense relates to sharing pricing components as well as how to change
27
American Column and Lumber Co v. US, 257 US 377 (1921, at 398-99).
28
Joined cases T-191/98, T-212/98 and T-214/98, Atlantic Container Line (TACA), in [2003] ECR II- 3275,
paragraph 1154.
29
United States v. United States Gypsum Co., 438 U.S. 422 (1978)
30
JJB Sports plc v. Office of Fair Trading and Allsports Limited v. Office of Fair Trading, [2004] CAT 17.
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pricing of components and the data aggregation of historical data which has been
categorically held to cause the most significant effect on competition.
● Further it is submitted that the information has been done in a private exchange with the
information being of a single company instead of an aggregated data in an informal
exchange.
● Also, the customer retention policy has to be taken as a supplement and since the pricing
strategy shared is sensitive it renders to be sensitive in nature.
34. Therefore, it is humbly submitted that the given information is commercially sensitive in
nature and from the above discussion it is pertinent to note that the said agreement in
question has the object of sharing commercially sensitive information.
3.3 RESTRICTION BY THE OBJECT OF EXCHANGE OF COMMERCIALLY SENSITIVE
INFORMATION IS IN CONTRAVENTION TO § 3(3) OF THE COMPETITION ACT
35. It is humbly submitted in the present Roark has exchanged information which is
commercially sensitive in nature as discussed in the above issue, this warrants the need to
examine whether the said object is in contravention of the competition law in various
jurisdictions.
36. EU Jurisdiction has been very strict in penalizing information exchanges and clearly lays
down its guidelines upon it as discussed above, such as A situation where only one
undertaking discloses strategic information to its competitor(s) who accept(s) it can also
constitute a concerted practice31In the Wirtschaftsvereinigung Stahl32 decision, the
European Commission found that an exchange of confidential information at firm level
(i.e., individual market shares and data on individual deliveries, broken down by quality
and consumer industries, they have been penalized by the commission since When one
undertaking alone reveals to its competitors strategic information concerning its future
commercial policy, that reduces strategic uncertainty as to the future operation of the
market for all the competitors involved and increases the risk of limiting competition and
of collusive behavior33.
31
Joined Cases T-25/95 and others, Cimenteries, [2000] ECR II-491
32
Wirtschaftsvereinigung Stahl, (98/4/ECSC)
33
Advocate General Kokott, Case C-8/08
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37. Further a similar stance has been adopted under the US Jurisdiction such as the US v.
American Linseed Oil Co34, where the Court struck down another associational
information exchange program concerning price lists, price variations and the names and
addresses of buyers who received special prices. Further In US v. Container Corporation
of America et al.35, the Court found that an agreement between container manufacturers to
exchange information with no evidence of intent to adhere to a price fixing scheme was
anti-competitive.
38. The object of penalizing an agreement with the object of exchange of commercially
sensitive information in foreign jurisdictions has been recognized and a similar stance has
been taken in Indian jurisdictions as well.
39. This very issue has been dealt in the Automotive Bearing Case 36 where four companies
involved in automotive and steel market exchanged information relating to the future
pricing, increasing pricing and marketing supplies in an informal setup, the companies
argued that the object of information exchange should not be viewed having any AAEC
on market since no effect of the agreement occurred. The CCI in this regard held:
“A bare reading of the provisions of § 3 (1) of the Act shows that these provisions
not only proscribe the agreements which cause AAEC but also forbid the
agreements which are likely to cause AAEC. Hence, the plea taken by the parties
that there is no contravention of the provisions of the Act in the present matter
because no AAEC has been caused as a result of the alleged cartel between the
parties, is not tenable in law.”
40. Further the National Company Law Appellate Tribunal in Ambuja Cements Limited & Ors
v. CCI37 observed that exchange of strategic information can be regarded as a concerted
practice aimed at reducing uncertainty from the market, this was in line with the United
Breweries case38, where CCI observed that the mere sharing of commercially sensitive
pricing information compromised the integrity of the independent bidding/pricing process.
34
United States v. American Linseed Oil Co., 262 U.S. 371 (1923)
35
US v. Container Corporation of America et al, 393 US 333 (1969)
36
In Re: Cartelisation in Industrial and Automotive Bearings and Ors, 2020 SCC ONLINE CCI 19.
37
Ambuja Cements Limited v. Competition Commission of India & Ors., 22-26/2017
38
In Re: Alleged anti-competitive conduct in the Beer Market in India, Suo Motu Case No. 06 of 2017
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41. Therefore, it is humbly submitted that the exchange of price sensitive information in an
agreement will held to be contravention of § 3(3) of the act.
3.4 THE AGREEMENT BETWEEN ROARK AND GENZ CONTRAVENS § 3(1) OF THE
ACT
42. In the present case it is submitted that for an agreement to be assessed under § 3(1)39 of
the competition act due regard needs to be given to § 19(3) of the act40. It is humbly
submitted that the Roark and GENZ agreement to share information create new barriers to
entry, which would drive existing competitors out of the market and cause foreclosure of
market, thus (a),(b),(c) are satisfied in the present case.
43. Further there have been no case made out for any of the pro-competitive factor namely
(d),(e) and (f) thus it cannot be construed to have a positive impact on the competition.
44. Therefore, it is humbly submitted that the present agreement between Roark and GENZ
would cause appreciable adverse effect on market under § 3(1) of the act.
45. In light of the arguments advanced and cases cited it is submitted that Roark and GENZ
sharing price sensitive information would amount to cartelization and further would cause
appreciable adverse effect on competition.
REFUSAL TO DEAL?
46. CCI has been held to have authority over matters of IPR Licensing by the high courts 41 as
well as the competition commission42 throughout India.
47. It is respectfully contended before the Hon'ble COMPAT that dominance per se is not
prohibited under the scheme of Antitrust Law in the State of Ruritania but its abuse is
prohibited43 which is covered under S4 of the Act. The key elements considered while
39
The Competition Act, 2002, § 3, No. 12, Acts of Parliament, 2002 (India).
40
41
Department Of Agriculture v. M/S Mahyco Monsanto Biotech, 2016 SCC ONLINE CCI 93; Telefonaktiebolaget
Lm Ericsson (Publ) Petitioner v. Competition Commission Of India And Another S, 2016 SCC OnLine DEL 1951.
42
Ficci - Multiplex Association Of India v. United Producers, 2011 SCC ONLINE CCI 33
43
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determining the conduct of an enterprise in relation to S4 of the Act44 are, (a), the relevant
market in which the enterprise is operating, (b), the market power of the entity and (c),
whether the conduct of the enterprise amounts to abuse.
4.1 THE RELEVANT MARKET IS MANUFACTURING OF CHIPS USING AI SOLUTIONS
IN THE DEFENSE SECTOR IN RURITANIA
48. It is humbly submitted that for the purpose of determining the dominance of an enterprise
or a group under S4 of the Act, it is essential to delineate the relevant market45 in which
the enterprise or group is functioning46.
49. Further in order to determine the relative market the act lays due consideration to be given
to (a) relevant product market and (b) relevant geographical market47.
4.1.1. THE RELEVANT PRODUCT MARKET IS MANUFACTURING OF CHIPS USING AI
SOLUTIONS IN THE DEFENSE SECTOR
50. It is submitted that § 19 lays down certain conditions which need to be given due regard.
In the present case the two relevant factors which should be used are (a) physical
characteristics or end-use of goods48 (f) classification of industrial products.49
51. It is contended that a relevant product market comprises all those products and/or services
which are regarded as interchangeable or substitutable by the consumer, by reason of the
products' characteristics, their prices and their intended use50. In addition, substitutability
is an essential parameter which is considered while determining a relevant product
market51. Furthermore, the SSNIP52 Test or the HM test is taken into due consideration
while determining the product market for the purpose of ascertaining the dominance of an
enterprise or a group in a relevant market.53 Further it has been held that both demand and
44
Ibid.
45
The Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2002 (India).
46
Matrimony.com Ltd. v. Google India (P) Ltd., Case No. 07 and 30 of 2012 (CCI).
47
48
The Competition Act, 2002, § 19(7)(a), No. 12, Acts of Parliament, 2002 (India).
49
50
Commission Notice on the definition of relevant market for the purposes of Community Competition Law,
(97/C372/03),
51
SM Dugar, ; See also: Case T-340/03, France Telecom SA v. Commission, [2003] E.C.R. II-107, ¶81.
52
Case COMP/M. 1672, Volvo/Scania [2001] O.J. L 143/74, ¶56.
53
JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION 47 ¶1.147, (3 ed. 2014).
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supply perspective based on the characteristics of the product, its price and intended use
has to be examined.54
52. In the present case Brillante has engaged in refusal to deal with competitors of Roark55,
which is a company operating in chip manufacturing in air defense sector56,also in the
defense sector Brillante technology is being used by most chip manufacturers57.
53. Therefore, it is humbly submitted with the relevant product market in the present case for
manufacturing of chips using AI Solutions in the defense sector.
4.1.2 THE RELEVANT GEOGRAPHICAL MARKET IS THE STATE OF RURITANIA
54. It is submitted that the relevant geographical market in the instant case, needs to be taken
as the entire geographical region of the State of Ruritania58 This is because, as per the Act,
the relevant geographic market comprises the area in which conditions of competition are
distinctly homogeneous.
55. Further in the present case there exists homogeneous conditions for air defense chip
manufacturers in Ruritania; accordingly the relevant geographical market is “State of
Ruritania”.
4.2 BRILLANTE IS A DOMINANT PLAYER IN THE RELEVANT MARKET

56. It is humbly submitted that after determining the relevant market which is providing AI
solutions in chip manufacturing in the air defense sector, it is important to assess
dominant position in the market for which due consideration needs to be given to § 19
which lays down factors for the same.
57. It is humbly submitted that in the present case the factors relevant are:
(a)Market Share of the enterprise-In most markets, an enterprise absolute market share is an
important factor that allows for initial indicators on market power59, this has been noted in
various cases such as holding more than a 90% Market Share was held to be dominant due to
having a huge market share60. Further size, resources and economic power was considered to be
54
Atos Worldline v. Verifoneindia, Case No. 56 of 2012 (decided on 10.04.2015).
55
Moot Proposition, ¶11(b).
56
57
58
59
SM DUGAR, GUIDE TO COMPETITION LAW 423 (Lexis Nexis 2016)
60
Esys Information Technologies Pvt. Ltd. V. Intel Corporation, 2014 SCC ONLINE CCI 10
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a relevant factor for determining that a company holds a large market share61.In the present case
Brillante holds a large consumer base62 therefore it can be inferred that it has a large market
share.
58. (d) Economic power of the enterprise, including commercial advantages over competitors-
Commercial advantage could be in the form of size, capacity, technical superiority etc.63
Further, having a technology viable for the functioning of the industry was held to be
dominant in nature64. In the present case Brillante has a technology which has path
breaking applications in chip manufacturing, perceived to be light years ahead of existing
technologies65 thus has a competitive advantage over its competitors.
59. (f) Dependence of consumers on the enterprise- In a leading case where a manufacturer
refused to supply its raw materials in efforts of production of its own drugs, the
dependence of company on raw materials was held to be a relevant factor to hold them
dominant66. In the present case Brillante‟s technology is being used by major chip
manufacturers in the defense industry67 thus it has a high degree of dependence on
consumers making it a relevant factor to examine dominant position.
60. (h)Entry barriers-Entry barriers have been considered to determine the dominant position
of the firm including inquiring into the technical expertise in order to enter the
competition68, Further, number of competitors providing similar service makes it easier for
competition to enter69. In the present case Brillante holds a patent which is light years
ahead of its competitors which provides then with a technical expertise and further the
lack of competitors due to its patent, causes a high barrier entry for its competitors in the
relevant market.
61
.supra note 54.
62
63
SM Dugar supra pg 27.
64
MCX STOCK EXCHANGE LTD., INFORMANT V. NATIONAL STOCK EXCHANGE OF INDIA LTD. 2011
SCC ONLINE CCI 52 : 2011 CCI 52
65
66
Istituto Chemioterapico Italiano S.p.A. and Commercial Solvents Corporation v Commission of the European
Communities. Joined cases 6 and 7-73. European Court Reports 1974 -00223
67
Para 5, Moot Proposition.
68
National Stock Exchange Of India Ltd. V. Competition Commission Of India 2014 Scc OnLine Comp AT 37
2014 COMP AT 129
69
Sunil Bansal And Ors. V.. M/S Jaiprakash Associates Limited And Another, Appeal No. 4 21/2016 on 28.09.2016
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61. An application of the given factors in determining dominant position under § 4 of the act
in the present case holds that:
● A position of strength-Brillante holds a high market share and has a high degree of
commercial advantage over its competitors thus enjoys a high position of strength.
● Operate independently of competitive forces prevailing in the relevant market-In the
relevant market of providing AI Solutions in chip manufacturing there exists a high
barrier of entry, further its vertical integration with Roark decreases the amount of
competitive forces.
● Affect its competitors in the relevant market-From the factors above it can be inferred
that Brillante consumers have a high dependency on it due to its existing patent due to
which it can actively affect the production and thus the competition in the relevant market
gets affected.
4.3 BRILLANTE BY ABUSING ITS DOMINANT POSITION HAS VIOLATED § 4(2)(C) OF

THE ACT
62. Refusal to deal has been taken as an abuse of dominant position in various cases such as a
dominant company refusing to supply its products in its secondary market to enter into
business itself, was held to abuse its dominant position by ruling that a dominant upstream
could not eliminate competition from its former customer70, further it was held that any
discriminatory act that could eliminate a firm from the relevant market71.
63. These judgments did not expound a clear rationale for dominant position in refusal to deal
cases; therefore, the court expounded on the given problem in Magill Case72This case
concerned copyright-protected television program listings which belonged to three
television broadcasters in Ireland and Northern Ireland. Magill, an Irish publisher, wanted
to compile these listings into one weekly comprehensive television guide and were refused
by the television broadcaster and were held to be dominant, the court holding them guilty
for refusal to deal under its dominant position expounded a three prong test for when the
70
Supra note 67.
71
United Brands Company and United Brands Continental BV v Commission of the European Communities. -
[1978] ECR 207
72
Radio Telefis Eireann v Commission of the European Communities, Joined Cases C-241 and 242/91P, [1995]
ECR I-743 : [1995] All ER (EC) 416.
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same had to be considered an abuse of dominant position which were (i) the lack of actual
or potential substitute for the new product which was prevented market access and for
which there were potential consumer demand (ii) the lack of justification for a refusal to
license (iii) the fact that the broadcasters reserved the second market to themselves by
excluding competition.
64. This principle has been further expounded in the IMS case73 where the 3 prongs were used
to determine the liability in the case and further the scope of the third prong was expanded
by defining the secondary market as two different interconnected stages of production.
65. This test to examine refusal to deal done by a dominant firm was reworded by the seventh
circuit court74 as (1) a monopolist controls an essential facility, (2) the facility cannot be
reasonably duplicated, (3) the monopolist has denied access, and (4) it was feasible for the
monopolist to share the facility.
66. Further, the Indian jurisdiction in the case of Tushar Kanti Dhingra v. Universal
BuildWell75 reworded the test in its own words and applied the essentiality doctrine in
order to determine the dominance of the OP.
67. The above prongs gave rise to the essential facility doctrine which has been given various
regard in the US jurisdiction76 as well as in The EU Jurisdiction77. The Apex Court dealt
with the above § in Competition Commission of India v. M/s. Fast Way Transmission
Pvt. Ltd. & Others 78 where it held:
“There is an abuse of the dominant position enjoyed by the respondents 1-4
only for the reason that the broadcaster was denied market access on and after
19thFebruary, 2011 until 1st August, 2011. The words "in any manner" one of
wide import and must be given their natural meaning”
73
IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, Case C-418/01, 2004 E.C.R. 1-5039
74
i MCI Commc'ns Corp. v. AT&T, 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891 (1983)
75
Tushar Kanti Dhingra v. Universal BuildWell, 2013 SCC OnLine CCI 28; Taxmann Indian competition law pg
128
76
Aspen Skiing Co. v. Aspen Highlands Skiing Corp,Eastman Kodak Co. v. Image Technical Services, Inc,Verizon
Commc'ns Inc. v. Law Offices of Curtis V. Trinko;United States v. Terminal Railroad Association
77
Browner Case, Case T-201/04, Microsoft v.. Commission, Judgment of 17/09/2007, ECR [2007] II-3601,Sealink
78
CCI v. Fast Way Transmission (P) Ltd., (2018) 4 SCC 316, ¶16.
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68. The service being essential to consumers has been a long standing principle in determining
refusal to deal cases under S4 of the act such as in the case of MCX v. NSE 79 where IPRs
in software were also considered for entry barrier analysis. The resources, consumer
dependency, entry barrier were considered and the NSE was ordered to give access to its
software by the CCI, considering the essential facility nature of its platform software.
Further, the CCI80 held that unreasonable conditions which were improbable for the
present scenario were held to be violates § 4 holding a denial access by the government
during awarding of tenders.
69. The above cases categorically justify the stance of the Indian authorities that the denial of
market access, in any manner, by a dominant enterprise cannot be justified.
70. In the present case an application of the cases as well as the relevant factors for discussing
the essentiality of the product resulting in denial of market access. It is humbly submitted
that (a)Since most chip manufacturers had been using Brillante‟s Technology in the
relevant market81it holds an essential facility and its path breaking applications in the chip
manufacturing coupled with its patent, causes a lack of actual or potential substitute in the
market (b)there has been no reasonable justification for such refusal and it has been done
in an attempt to create a monopoly of Brillante‟s parent company Roark(c)Brillante is
protecting the secondary market of its parent company being Roark which is engaged in
the secondary market.
71. Therefore, Brillante has denied market access to the competitors of Roark in the state of
Ruritania contravening § 4(2)(c) of the act.
4.4 THE AGREEMENT BETWEEN BRILLANTE AND ROARK VIOLATES § 3(4) READ
WITH § 3(1) OF THE ACT
72. It is humbly submitted that Brillante has engaged in refusal to deal by entering into an
agreement with Roark to not supply its service in the upstream market to Roark‟s
competitor, this agreement falls under § 3(4) of the CI act and needs to be thoroughly
examined within § 3 of the act.
79
Supra note 65.
80
Jupiter Gaming Solutions Private Limited V. Secretary, Finance Government Of Goa 2011 SCC ONLINE CCI 24
para 36 and 54
81
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4.3.1 THE AGREEMENT IS VIOLATIVE OF § 3(4) OF THE ACT

73. A bare reading of the provision82 lays down refusal to deal as an agreement which
restricts, or is likely to restrict, by any method the persons or classes of persons to whom
goods are sold.
74. This clause broadly corresponds to clause (e) of § 6(1) of the U K Restrictive Trade
Practices Act, 1956.83 It covers bi-lateral (vertical) agreements between a
manufacturer/seller and the buyer stipulating that (a) the buyer shall not sell the goods
obtained from the seller to a particular person (or class of persons), or (b) the
manufacturer/seller shall not sell his goods to anyone else, except the buyer (or a class of
buyers),What is required to be seen in these cases is the effect of such practice on
competition and whether it results in, or is likely to result in, foreclosing markets to
competitors and/or to coerce the dealers to adopt trade practices which they might not
otherwise adopt84.
75. Thus from the relevant provisions an understanding of an agreement which restricts other
players in market to compete, either by way of expressly precluding them or supplying only
to a set of people would amount to refusal to deal.
76. The concept of refusal to deal has been dealt quite extensively in the Indian jurisdiction such
as in the landmark case of Honda Siel85 where an implied agreement between OEM‟s of
spare parts and the dealers to not sell the said parts in open market, the commission held:
“refusal to supply diagnostic tools and spare parts by Hyundai to independent repairers
amounts to denial of access to an “essential facility”.
77. Further, refusal to sell may not be categorical, but it may be implied in the dilatory tactics or
discriminatory terms of sale which may be more onerous than those accorded to other dealers.
In fact, dilatory tactics constitute a more subtle form of refusal to sell since their aim is either
to put a customer in a position where he is unable to place an order or to postpone without
valid reason the execution of an order86 The concept of a refusal to deal covers not only
82
83
Restrictive Trade Practices Act, 1976 of UK. §6(1)(e).
84
Hemraj Electronics v Monika Electronics Pvt Ltd, RTP Enquiry No 93/1985 (MRTPC), order dated 9 January
1986; Re Saurashtra Ballpen Pvt Ltd, RTP Enquiry No 156/1986, order dated 20 March 1987.
85
Shamsher Kataria Informant v Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).
86
Sm dugar page supra 153
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situations of pure or straightforward refusal, but also instances of agreement by the entity to
deal but under unreasonable or uneconomic conditions87.
78. Refusal to deal raises primary competition concern likely to arise as result of a refusal to
supply is that competition will be distorted in a market downstream from the (upstream)
market for the refused input, such as when a drug raw material manufacturer refused to supply
its product in the downstream market was held to cause refusal to deal 88A stipulation in the
dealership agreement that sub-serving dealers will be appointed with prior permission of the
manufacturer/supplier would tantamount to refusal to deal89further a newspaper was enjoined
from refusing to accept advertisements for publication where the reason for such refusal was
that the advertiser had advertised or proposed to advertise by any other media90.
79. The courts of Indian jurisdiction have also observed various restrictions that so placed would
amount to refusal to deal such as an MOU entered between SAIL and IR where, the MOU
contained exclusive supply obligations and resulted in refusal to deal in contravention of §
3(4)91 , an agreement between a dominant player in the paint market with the dealers to not
carry its competitor‟s product was held to amount to refusal to deal92.
80. Further in the case of Department of Agriculture v. M/S Mahyco Monsanto Biotech93 the
commission dealt with imposing unreasonable conditions on the termination of the
sublicensee agreements and held: “notification requirements coupled with the stringent
termination conditions in the sub license agreement entered into between MMBL and the
Informants are in the nature of refusal to deal and exclusive supply agreements within the
meaning of Section 3(4)(b) and 3(4)(d) of the Act. The termination conditions are found to be
excessively harsh and do not appear to be reasonable as may be necessary for protecting any
of the IPR rights, as envisaged under § 3(5) of the Act”
4.3.2 THE AGREEMENT IS VIOLATIVE OF § 3(1) OF THE ACT
87
Para 9, Roundtable on Refusals to Deal, Directorate for Finance and Enterprise Affairs, DAF/COMP/WD
(2007)100. Available at: http://ec.europa.eu/competition/international/multilateral/2007_oct_ refusals_to_deal.pdf
(accessed in January 2022).
88
Supra note 67.
89
In Re: Garware Plastics Polyster Ltd, RTP Enquiry No 1272/1987, order dated 5 October 1987.
90
US v Mansfield Journal Co, DC Ohio 1952.
91
Jindal Steel & Power Ltd. v. Steel Authority of India Ltd., [2012] 107 CLA 278 (CCI).
92
Jsw Paints Private Limited Informant V. Asian Paints Limited Opposite Party. 2020 SCC ONLINE CCI 1.
93
supra note 42.
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81. It is humbly contended that as submitted in the above issue Brillante has engaged in
refusal to deal with Roark, to restrict Roark‟s competitors from production thus attracting §
3(4) of the Act, due to which the effect of the present agreement has to be examined under §
3(1) of the act94.
82. For this the relevant factors of § 19(3) need to be examined in order to ascertain whether
such agreement causes AAEC in the market.
83. Creation of barriers to new entrants in the market-creation of barriers has been taken into
account by the commission by considering factors such as size and strength of the
enterprise95further a lack of transparency was also taken into consideration in determining the
barriers to entry96. In the present case Brillante is a company with a large consumer
base97,further Roark and GENZ sharing their commercially sensitive information has caused a
lack of transparency in the market thus any step like Brillante‟s negotiations would further
create more barriers to entry.
84. (b) Driving existing competitors out of the market- Commission while dealing with this factor
have noticed various methods, such as asking personal security to the tune of 25 lakhs was
held to be done only with the aim of driving competitors out of the market 98. In the present
case the agreement between Brillante and Roark to enter into negotiations with Roark
competitors99 and asking them to cease and desist from using their technologies100would drive
competitors out of the market since it would only leave Roark and GENZ in the market
driving competitors out.
85. (c)Foreclosure of competition by hindering entry in the market-Any constructive agreement
which leads to market being shut down such as an agreement to not switch to any builder and
such switching would result in forfeiting the earnest money was held to attract the said
factor101. In the present case Brillante and Roark‟s agreement would foreclose the competition
since such negotiations would not let any other player participate in the market.
94
95
Automobiles Dealers ... v. 1. Global Automobile..., Case No. 33/2011 (decided on 03.07.2012).
96
Surinder Singh Barmi v. Board Of Control For Cricket In India, 2017 SCC OnLine CCI 57.
97
98
Kshitij Ranjan Informant v. Indian Newspaper Society Opposite Party., 2011 CCI 67.
99
100
101
Mr. Jyoti Swaroop Arora Informant v. M/S Tulip Infratech Pvt. Ltd., 2011 CCI 14.
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COMPETITION, 2022
86. Factors (d),(e),(f) have also been given due consideration under the said agreement in
order to determine if such an agreement is pro-competitive102,In the present case no case
has been made out that such negotiation has been done and could cause any sort of benefit
to the consumer, cause any improvement in production or technical development.
4.3.3 DEFENCE OF § 3(5) NOT APPLICABE AS BRILLANTE HAS UNREASONABLY
USED ITS IPR
87. § 3(5) of the act provide protection to IPR holders with respect to certain
agreements provided that the exercise of such rights should be reasonable103. With
respect to reasonable conditions the commission In the Monsanto case104 observed:
The termination conditions are found to be excessively harsh and do not appear to
be reasonable as may be necessary for protecting any of the IPR rights, as
envisaged under § 3(5) of the Act.”
88. Further there have been various cases commission has held where any condition
imposed by the IPR which causes AAEC in market would not be a reasonable
condition105. Since Brillante‟s agreement would cause AAEC in the market as states
above it is humbly submitted that the exception of § 3(5) won't apply here since it‟s
an unreasonable condition which has been imposed.
89. In light of the arguments advanced and cases cited it is humbly submitted that
Brillante is a dominant player and has abused its dominant position which has
caused a denial of market access contravening § 4 of the act.
90. Further it is submitted Brillante and Roark agreement is in contravention of § 3(4)
read with § 3(1) of the act contravening § 3 of the act.
102
Air Cargo Agents Association Of India v. International Air Transport Association, 2015 CCI 130.
103
104
supra note 42.
105
supra note 42.; supra note 43.; supra note 86.
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COMPETITION, 2022
PRAYER
WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HONORABLE COURT
MAY BE PLEASED TO DECLARE THAT:
1. CCR WAS CORRECT IN FINDING THAT ROARK WAS REQUIRED TO HAVE
NOTIFIED ITS ACQUISITION OF BRILLANTE;
2. ROARK DID NOT HAVE A RIGHT TO HAVE ITS LAWYERS PRESENT DURING
SEARCH & SEIZURE AND DEPOSITION;
3. CCR WAS CORRECT IN PENALISING ROARK FOR EXCHANGE OF
INFORMATION/ CARTELISATION;
4. CCR WAS CORRECT IN FINDING THAT BRILLANTE HAD ENGAGED IN
REFUSAL TO DEAL;
AND PASS ANY OTHER ORDER THAT IT MAY DEEM FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE ALL OF WHICH IS MOST HUMBY AND
RESPECTFULLY SUBMITTED.
Place: S/d_________________
Date: COUNSELS FOR THE RESPONDENT
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CCI- HNLU XIITH JUSTICE HIDAYATULLAH NATIONAL MOOT COURT

Competition Appeal (AT) No.___/2022

COMPETITION COMMISSION OF RURITANIA RESPONDENT

Appeal Filed under § 53-B of the Competition Act, 2002

MEMORIAL for the RESPONDENT

1. INDEX OF AUTHORITIES ............................................................................................ 3

2. STATEMENT OF JURISDICTION ............................................................................... 8

THE RESPONDENT SUBMITS TO THE JURISDICTION OF THIS HON’BLE

3. STATEMENT OF FACTS ............................................................................................... 9

BACKGROUND OF COMPANIES ....................................................................................... 9

AFTERMATH OF DAWN RAID ........................................................................................... 9

FINAL ORDER ....................................................................................................................... 10

4. STATEMENT OF ISSUES ............................................................................................ 11

5. SUMMARY OF ARGUMENTS .................................................................................... 12

ISSUE 2: DID ROARK HAVE A RIGHT TO HAVE ITS LAWYER PRESENT

2.1 NO EXPLICIT PROVISION FOR PROVIDING A LEGAL COUNSEL IN THE

2.2 PRINCIPLES OF NATURAL JUSTICE NOT VIOLATED .................................... 16

3.1 AN AGREEMENT IS RESTRICTED BY THE NATURE OF ITS OBJECT ....... 17

3.2 THE INFORMATION EXCHANGED IS COMERCIALLY SENSITIVE IN

3.3 RESTRICTION BY THE OBJECT OF EXCHANGE OF COMMERCIALLY

3.4 THE AGREEMENT BETWEEN ROARK AND GENZ CONTRAVENS § 3(1) OF

MEMORIAL FOR THE RESPONDENT

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

4.1 THE RELEVANT MARKET IS MANUFACTURING OF CHIPS USING AI

4.2 BRILLANTE IS A DOMINANT PLAYER IN THE RELEVANT MARKET ....... 25

4.3 BRILLANTE BY ABUSING ITS DOMINANT POSITION HAS VIOLATED §

4.4 THE AGREEMENT BETWEEN BRILLANTE AND ROARK VIOLATES § 3(4)

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

2. Advocate General Kokott, Case C-8/08............................................................................ 19

MEMORIAL FOR THE RESPONDENT

STATUTES, REGULATIONS, AND TREATIES

1. Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).

5. Sherman Act, 15 U.S.C. §1 (1890)

6. The Competition Commission of India (General) Regulations, 2009.

7. The Competition Commission of India (Procedure in regard to the transaction of business

relating to combinations) Regulations, 2011.

8. Council Regulation (EC) No. 139/2004, OJ L 024.

9. Treaty on The Functioning of European Union.

1. SM DUGAR, GUIDE TO COMPETITION LAW (Lexis Nexis 2016)

2. GAUTAM SHAHI AND DR. SUDHANSHU KUMAR, INDIAN COMPETITION LAW

MEMORIAL FOR THE RESPONDENT

137 (Taxmann 2021)

3. ALISON JONES, BRENDA SUFRIN, NIAMH DUNNE, EU COMPETITION LAW:

TEXTS, CASES, AND MATERIALS 494, (ed. 2019)

4. F. WIJCKMANS, &amp;F. TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU

COMPETITION LAW (2 nd edn. 2011)

MEMORIAL FOR THE RESPONDENT

THE RESPONDENT SUBMITS TO THE JURISDICTION OF THIS HON’BLE COURT

“Appeal to Appellate Tribunal

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

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

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

MEMORIAL FOR THE RESPONDENT

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

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

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

4. F. WIJCKMANS, &F. TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU