11th MAHAMANA MALAVIYA NATIONAL

MOOT COURT COMPETITION, 2024

MOOT PROPOSITION

1. The Republic of Banaras (hereinafter “Banaras”) is a constitutional monarchy located in the

South East Asian region. Banaras is a manufacturing intensive economy and plays an important role
in the global supply chain. The turn of the century has seen an exponential increase in internet
connectivity in the country. Internet tariffs in Banaras are amongst the lowest in the world. The
internet has revolutionized many aspects of the lives of Banarasi people including in sectors such as
entertainment, finance, and commerce. This has led to the mushrooming of many internet-based
start-ups in Banaras.

2. One such start-up that has become the face of the success story of Banaras’ tech industry is
Ganges.com (hereinafter “Ganges”), an e-commerce company which initially started as a
marketplace/intermediation service platform to facilitate transactions between buyers, sellers, and
advertisers. The e-commerce juggernaut has become synonymous with unparalleled convenience
and an expansive array of products and services such as electronics, garments, cosmetics, and home
decor. Over time, it has entered into the online retail market by creating its own brands and labels
offering a vast selection of goods ranging from books and electronics to household items and
fashion which are also sold on its e-commerce platform. Banaras has turned out to be one of the
biggest online retail markets in the world. The revenue generated from it was worth INR 120
billion in the year 2021. According to a market report published in the year 2021 by Shopping
Times, the market share of various players in the e-commerce market stood as follows:

3. Ganges has spearheaded innovation in the area of e-commerce. It has invented various
technologies that have made online shopping a preferable option, including the following
technologies:
 'Buy box’, a smart system that automatically chooses brands, sellers, and delivery partners for
customers for all products and services;
'Anticipatory shopping’, an AI system that enables Ganges to use its extensive cache of data
about consumer habits to determine what products they need and makes suggestion to them
on the basis of the data;
'E-commerce lens’, a system that allows users to point the camera to any product and buy the
same with one click;
‘Voice purchasing’, a system that allows users to buy products using smartphone voice
assistants and voice-controlled devices.

4. Ganges has vigorously filed applications seeking patent protection throughout the globe and
most of its cutting-edge technology has been given patent protection in Banaras. The patent
portfolio of Ganges runs into hundreds. The innovation brought by Ganges in the e-commerce
industry is stated to have brought the e-commerce industry to the next generation. The Banaras
E-commerce Standards Institute (BESI) has prescribed the Gen-Z standards in e-commerce to
bring uniformity in basic functions, consistency in performance, minimum technical features,
compatibility and interoperability within the e-commerce industry and with other devices.
Many patented technologies of Ganges form part of the BESI Gen-Z standard. Any e-commerce
business claiming to be Gen-Z standard compliant must incorporate the technology belonging
to Ganges. On the other hand, Ganges has agreed to the IPR policy of BESI which requires that
the technologies which form part of the standard are licensed to any willing licensee on Fair,
Reasonable, and Non-Discriminatory terms. Open availability of patented technology in the e-
commerce industry has led to the entry of multiple Gen-Z compliant e-commerce businesses in
the market, making the industry vibrant and giving options to the buyers to choose from.

5. Ganges hosts both in-house brands and third-party sellers on its platform. As per the official
records of the company, there are more than 5 million sellers that use the Ganges platform to sell
various products. Apart from in-house brands and labels, Ganges has also expanded into allied
and cognate services such as warehouse storage, packaging, shipping, delivery, and customer
support amongst others. These services are offered not to the buyers but to the sellers in a
package called ‘Fulfilled by Ganges (FBG)’. The sellers who use these services are called as
“preferred sellers”. As per internal surveys conducted by Ganges amongst buyers on its website,
most of them showed an inclination to buy products from preferred sellers due to the
availability of faster & reliable shipping, customer-friendly return and cancellation policies, and
better grievance redressal mechanism.
6. In order to attract more customers to shop on the internet, e-commerce businesses in Banaras
collaborate with various manufacturers to launch products exclusively on their marketplace. The
exclusivity ordinarily is only for a limited period, i.e., a couple of weeks, after which the product in
question becomes widely available in the brick-and-mortar shops and other e-commerce
marketplaces. In one such deal, OnePlusTwo, a smartphone manufacturing company got into a
Brand Listing Agreement with Ganges to sell its latest smartphone OnePlusTwoIsNine exclusively
on Ganges for two weeks through the preferred sellers.

7. Kashi Chronicles, a news agency, conducted an investigation into the conduct of Ganges in
February, 2022 and accused it of having vertical agreements with and giving special treatment to
preferred sellers by giving them discounted fees, access to Ganges’ global retail tools, and exclusive
deals amongst other benefits. It further accused that many of the preferred sellers were its own in-
house brands. It alleged that the company used non-public internal seller data relating to business
strategies, and transactions of successful products to help its in-house brands and labels develop
products and choose which segment to expand into. Moreover, it also accused Ganges of self-
preferencing, i.e., manipulating search results on the platform to favour its own products.

8. Banaras Vyapar Mahasangh (hereinafter “BVM”), an association of retailers and Small and
Medium Enterprises held protests in various states of Banaras. It accused Ganges of bundling and
tying-in services to leverage their dominant position in e-commerce to acquire monopoly power in
the secondary market, i.e., online retail. It alleged that the Ganges’ market position is of paramount
significance across markets and it was entering into vertical agreements. It further alleged that
Ganges forced all the third-party sellers on its marketplace to sign a price parity clause, i.e., no seller
will sell a product at a lower price at any other platform, to guarantee the lowest price for itself.

9. This prompted a Joint Parliamentary Committee (JPC) of the Parliament of Banaras to

conduct hearings and issue notice to the Chief Executive Office of Ganges- Ms. Aisvaria
Subramanian, to depose on the issue. In response to the questions put to her, she stated:

“…Ganges.com has revolutionized the online shopping and selling in

Banaras. It provides space to small sellers in the virtual world without the
hassle of operating their own websites. As far as the allegations against the
company are concerned, they are totally baseless. Ganges has never
intentionally used any non-public data directly to develop any in-house
labels or brands. I can testify before this august Committee that the Company
has not entered into any written agreements with any party whatsoever that
would harm the interest of the consumers of Banaras. As written submissions
submitted on behalf of the company show, all the essential functioning of the
marketplace website is automated. The data that Ganges gathers is fed to an
AI algorithm that generates search results, recommendations for the buyers
and decided the most appropriate seller for the ‘buy now box’. There is no
man-made intervention into the algorithm which leads to favorable
treatment of certain portion of sellers on the platform.

xxxx

Insofar as the question of Hon’ble Member- Mr. Rahul Singh, is concerned-

yes, Ganges uses an algorithm to make market strategies for expansion into
services and products that Ganges and its brands could get into, and it is the
same algorithm that generates search results on the marketplace. I can assure
the Hon’ble member that it is only done to increase product quality by
identifying potential areas where there is a scope for reduction of prices, thus
enhancing consumer welfare.
xxxx

No, Ganges has not conducted any explicit algorithmic auditing to identify
inclination for self-preferencing as the laws of Banaras do not require us to do
so. Our company policy, that prohibits the use of internal seller data, is
limited to employees only and I cannot take responsibility on behalf of an
Artificial Intelligence system, something that even we at Ganges do not
completely understand yet. However, I can depose here today before the
Committee that despite the concerns raised, the algorithm enables the
platform to better target product recommendations for users and improve the
quality of the platform. The services that Ganges provides, apart from the
marketplace- what the Hon’ble Member- Mr. Kartikeya Tandon referred to
as cognate and allied services- have enabled last mile connectivity for sellers
and buyers in Banaras…”
10. In October, 2023, BVM filed information with the Competition Commission of Banaras
(hereinafter “CCB”) under Section 19 of the Competition Act, 2002. BVM in its information
alleged that Ganges is involved in bundling of services, algorithmic self-preferencing, and reducing
the visibility of sellers who do not use cognate and allied services offered by it. Further, the
Association alleged that Ganges indulges in practices that result in denial of market access, and was
using its dominant position in the broader e-commerce industry to enter into the retail market. It
was also alleged that Ganges forces its automated pricing tools on sellers on the platform thereby
compromising their ability to set prices independently. BVM alleged that these activities, including
the algorithmic bias in Ganges’ system, are per se anti-competitive, and in violation of the
Competition Act.
11. In June, 2021, Ganges realized that a new company by the name of Door-mart had entered the
e-commerce business in Banaras and was advertising itself to be Gen-Z standard compliant.
However, it was not a licensee of Ganges. It immediately issued a notice to Door-mart informing
that it had infringed Ganges’ Gen-Z standard essential patents and demanded that Door-mart
secures licenses for its entire patent portfolio. Both the parties negotiated for almost two years on
the terms of the license and the amount of royalty. At that point, Door-mart approached the CCB
alleging that Ganges was imposing unreasonable conditions for licensing its patent portfolio that
were not Fair, Reasonable, and non-discriminatory. It was alleged that the royalty demanded by
Ganges were excessive when compared to royalties charged from other licensees who were in a
similar position. Door-mart contended that Ganges was abusing its dominant position by imposing
exorbitant royalty rates for its patents as there was no alternate technology available and Ganges is
the sole licensor for the patents of globally acceptable Gen-Z e-commerce technology standards. It
further claimed that Ganges has abused its position by using the threat of filing a suit for
permanent injunction against Door-mart.
12. Ganges contested the proceedings initiated by Door-mart before the CCB on ground that
exercise of rights by a patentee under the Patents Act, 1970 cannot be subjected to the jurisdiction of
the CCB under the Competition Act, 2002. The CCB dismissed the arguments raised by Ganges on
the ground that the provisions of the Competition Act are in addition to other existing laws and
directed an investigation by the CCB’s Director General (hereinafter “DG”) into the allegations
made by the Informant in Case No. 81/2023 titled Banaras Vyapar Mahasangh v. Ganges.com.
Ganges challenged the order of the CCB before the High Court of Kashi which upheld the order of
the CCB. Thereafter, Ganges preferred an SLP against the order of the High Court before the
Supreme Court of Banaras being SLP(C) No. 300397 titled Ganges.com v. Competition
Commission of Banaras & Door-mart which was admitted.
13. In the meantime, taking into account the allegations made by BVM, the CCB directed the DG
to carry out investigation in Case No. 92/2023 titled Door-Mart v. Ganges.com. After carrying
out an investigation, the DG concluded that Ganges is a dominant player in the e-commerce
market and it was abusing its dominance. The DG looked into the agreements that Ganges entered
into with sellers listed on its platform and found them to be anti-competitive. On the other hand,
Ganges argued that it had not entered into any agreement that would cause appreciable adverse
effect on competition in Banaras. It further took the stand, that algorithmic self-preferencing, even
if any, is not actionable per se under the Competition Act. Ganges stated that consumer welfare and
role of innovation is significant when considering the platform’s policies. If any direct intervention
or control is imposed on the algorithm, it would lead to stifling of innovation in the evolution of e-
commerce industry.

14. The CCB vide order dated 22nd December, 2023 was of the view that Ganges was abusing its
dominant position in e-commerce business as it was not following the principle of platform
neutrality. The CCB held Ganges to be liable for disadvantaging third-party sellers on its platform
resulting in an uneven playing field. Ganges appealed against the order to National Company Law
Appellate Tribunal (hereinafter “NCLAT”) which upheld the order of the CCB. Aggrieved by the
order of NCLAT, Ganges has preferred an appeal to the Supreme Court being C.A. No. 221096
titled Ganges v. Banaras Vyapar Mahasangh.

15. The Supreme Court of Banaras has clubbed both the matters for hearing and listed them for
arguments.

NOTE:

16. The Banarasi competition law regime is more or less identical to the European Union (EU) and
the jurisprudence laid down in the EU and United States is held in high regard in Banaras. Further,
the laws in Banaras are in pari materia with the laws in India and the Banarasi competition
authorities, courts, and tribunals consider judgments and orders of Indian tribunals and court to
have high persuasive value.

*The Moot Proposition has been drafted by Mr. Shivam Kaushik, Advocate and Former
Judicial Law Clerk to Hon’ble J. Prathiba Singh. Any attempt to contact the above-
mentioned person by any member of any participating team shall result in immediate
disqualification.