Best Team Memorial Respondent Nluj Antitrust Moot 13 2022 500086731 Stuupesacin 20240224 160250 1 31

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13th NLUJ Antitrust Moot, 2022

Best Team Memorial - Respondent
Before the Supreme Court of Nidavellir

Special Leave Petition filed under Article 136 of the Constitution of Nidavellir
Admitted as Civil Appeal under Section 53T of the Act
In the Matter of
SLP/CA No. 16 of 2022
Eitri Manufacturers Limited … Petitioner;
Versus
Nidavellir Federal Trade Commission … Respondent.
clubbed with
SLP/CA No. 08 of 2022
Odin Automobiles Limited … Petitioner 1;
Hela Motor Company … Petitioner 2;
Fury Vehicles Corporation … Petitioner 3;
Versus
Nidavellir Federal Trade Commission … Respondent.
Most Respectfully Submitted to the Honourable Judges of the Supreme Court of
Nidavellir
TABLE OF CONTENTS
LIST OF ABBREVIATIONS VI
INDEX OF AUTHORITIES IX
STATEMENT OF JURISDICTION XX
STATEMENT OF FACTS XXI
ISSUES FOR CONSIDERATION XXIV
SUMMARY OF ARGUMENTS XXV
WRITTEN ARGUMENTS 1
ISSUE A: WHETHER NFTC'S JURISDICTION SUPERSEDES THAT 1
OF THE TVA AND THE NFTC ERRED BY PASSING ITS FINAL
ORDER WHEN THE MATTER WAS SUB-JUDICE BEFORE THE
TVA?
I. NFTC'S JURISDICTION SUPERSEDES THAT OF TVA 1
A. JURISDICTION OF NFTC AND TVA DO NOT OVERRIDE EACH OTHER 1
I N PRESENT CASE
B. JURISDICTIONAL FACTS I N FAVOUR OF NFTC 2
[i] Prima facie case of NFTC as jurisdictional facts are present 3
[ii] Absence of jurisdictional facts of TVA 3
C. NON-OBSTANTE CLAUSE APPLIES 4
II. NFTC HAS NOT ERRED BY PASSING ITS FINAL ORDER WHEN 4
THE MATTER WAS SUB JUDICE BEFORE THE TVA
A. I SSUE BEFORE NFTC IS DIFFERENT FROM MATTER SUB JUDICE 4
BEFORE TVA
B. NFTC FOLLOWED I TS STATUTORY DUTY 5
ISSUE B: EITRI HAS VIOLATED SECTION 3(4)(C) OF THE ACT 6
I. THE PREREQUISITES OF SECTION 3(4) ARE FULFILLED 6
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A. EITRI AND ULTRON ARE ENTERPRISES 6

B. EITRI AND ULTRON OPERATE AT DIFFERENT LEVELS OF THE 7
PRODUCTION CHAIN I N DIFFERENT MARKETS
II. THERE IS AN EXCLUSIVE DISTRIBUTION AGREEMENT BETWEEN 8
EITRI AND ULTRON
A. THERE I S AN AGREEMENT BETWEEN EITRI AND ULTRON 8
B. THE AGREEMENT I S I N THE NATURE OF EXCLUSIVE DISTRIBUTION 8
III. THE AGREEMENT CAUSES AAEC IN THE RELEVANT MARKET 9
A. EITRI HAS MARKET POWER 10
B. THE NEGATIVE EFFECTS OF THE AGREEMENT OUTWEIGH THE 11
POSITIVE EFFECTS
[i] The agreement between Eitri and Ultron causes negative 11
effects
a. It creates barriers to new entrants 11
b. It leads to foreclosure of the market 12
[ii] The agreement has no positive effects on the market 13
a. There is accrual of harm to the consumers 13
b. There is no improvement in the production of goods or 14
provision of services
c. Eitri does not promote technical, scientific, or economic 14
development
ISSUE C: EITRI HAS VIOLATED §4 OF THE ACT 15
I. THE RELEVANT MARKET IN THE PRESENT CASE IS THE MARKET 15
OF ELECTRIC AUTOMOTIVE MANUFACTURING IN THE STATE OF
NIDAVELLIR
A. RELEVANT GEOGRAPHIC MARKET I S STATE OF NIDAVELLIR 16
B. RELEVANT PRODUCT MARKET IS ELECTRIC AUTOMOTIVE 16
MANUFACTURING I NDUSTRY
[i] The physical characteristic of electric cars is different from 17
other cars
[ii] Consumer Preference differentiates between electric cars 17
from other car
a. Demand side substitutability not fulfilled 18
b. Supply Side Substitutability not qualified 18
[iii] A narrow market should be considered 19
II. EITRI IS DOMINANT IN THE IDENTIFIED MARKET 19
A. EITRI CAN OPERATE I NDEPENDENTLY OF COMPETITIVE FORCES 20
[i] It has high market share 20
a. Herfindahl-Hirschman Index 21
[ii] Size and resources of the Eitri 21
[iii] Size and resources of competitors 22
[iv] Vertical integration of Eitri and creation of entry barriers 22
B. EITRI AFFECTED I TS COMPETITORS AND CONSUMERS I N I TS FAVOUR 23
[i] Dependence of consumers on Eitri 23
[ii] Creation of entry barriers by monopoly acquired through 24
patent act
III. EITRI HAS ABUSED ITS DOMINANT POSITION 24
A. I MPOSED UNFAIR CONDITION ON PURCHASE OF 8G SERVICE AND 25
DENIED ACCESS TO ESSENTIAL FACILITY
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[i] Eitri imposed unfair condition on Ultron while purchase of 25

service
[ii] Eitri restricted Ultron to provide essential facility and 25
violated essential facility doctrine
B. EITRI DENIED MARKET ACCESS BY MAKING EXCLUSIVE 26
DISTRIBUTION AGREEI WITH ULTRON
ISSUE D: ODIN, HELA AND FURY HAVE VIOLATED SECTION 3 28
OF THE ACT
I. THERE EXISTS AN ANTI-COMPETITIVE AGREEMENT 28
A. OHF HAVE ENGAGED I N CARTELISATION 28
B. OHF HAVE ENGAGED I N COLLUSIVE BEHAVIOUR 30
[i] OHF have shared commercially sensitive information 31
[ii] OHF have indulged in price manipulation 32
II. PROVISO UNDER SECTION 3(3) DOES NOT APPLY 33
III. OHF HAS CAUSED AAEC 34
PRAYER 36
LIST OF ABBREVIATIONS
S. No. ABBREVIATION MEANING
1. § Section
2. ¶ Paragraph
3. & And
4. % Percentage
5. AAEC Appreciable Adverse Effect on Competition
6. AIR All India Reporter
7. Anr Another
8. Art Article
9. CA Civil Appeal
10. CCI Competition Commission of India
11. Co Company
12. CSC Car Smart Chip
13. DG Director-General
14. ECJ European Court of Justice
15. ECR European Court Reports
16. Ed Edition
17. Etc. Etcetera
18. EU European Union
19. EV Electric vehicle
20. GoN Government of Nidavellir
21. HC High Court
22. ICC Integrated Circuit Chip
23. IP Intellectual Property
24. IPR Intellectual Property Rights
25. JV Joint Venture
26. Ltd Limited
27. NAR Nidavellir Antitrust Regulation
28. NAT National Appellate Tribunal
29. NFTC Nidavellir Federal Trade Commission
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30. OHF Odin, Hela, and Fury

31. Ors Others
32. Pvt Private
33. R&D Research and Development
34. r/w Read with
35. SC Supreme Court
36. SCC Supreme Court Cases
37. SLP Special Leave Petition
38. SSNIP Small but Significant and Non-Transitory Increase in Price
39. TDSAT Telecom Dispute Settlement and Appellate Tribunal
40. TRAI Telecom Regulatory Authority of India
41. TVA Telecom Variance Authority
42. UHF Ultra-High Frequency
43. UOI Union of India
44. v Versus
INDEX OF AUTHORITIES
S. No. INDIAN CASES PAGE NO.
1. All India Tyre Dealers' Federation v. Tyre Manufacturers, 32
2012 SCC OnLine CCI 65
2. Arshiya Rail Infrastructure Ltd. Informant v. Ministry of 26
Railways, C. No. 64 of 2010 (CCI Aug. 14, 2012)
3. Automobiles Dealers Assn. v. Global Automobiles Ltd., C. 10, 13
No. 33 of 2011 (CCI July 3, 2012)
4. Belaire Owner's Assn. v. DLF Ltd., C. No. 19 of 2010 (CCI 3
Aug. 12, 2011)
5. Brickwork Ratings India v. CRISIL Ltd., 2020 SCC OnLine 2
CCI 49
6. Builder's Assn. v. Cement Manufacturers Assn., (2016) 29
CompLR. 983 (CCI), ¶ 14.3.2.
7. Builders Assn. of India v. Cement Manufacturers' Assn., 32
10. Cadila Healthcare Ltd. v. CCI, C. No. 2106 of 2018 (CCI 3
Mar. 09,2018)
11. Cartelisation in Industrial and Automotive Bearings v. ABC 34
Bearings, S.M.C. No. 05 of 2017 (CCI)
12. CCI v. JCB India Ltd., T.C. No. 44 of 2016, (SC) 27
13. CCI v. SAIL, (2010) 10 SCC 744 3
14. Consumer Online Foundation v. Tata Sky Ltd, [2011] CCI 2
11
15. Delhi Jal Board v. Grasim Industries Ltd., C. No. 03 of 31
2013 (CCI)
16. Film & Television Producers Guild of India v. MAI, C. No. 31
37 of 2011 (CCI), U 7
17. HT Media Ltd. v. Super Cassettes Ltd., C. No. 40 of 2011 27
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(CCI)
18. Hyundai Motor India Ltd. v. CCI, (2017) 5 SCC 17 : AIR 12
2017 SC 1449
19. In re: All India Tyre Dealer's Federation v. Tyre 28, 31
Manufacturers, C. No. 20 of 2008 (CCI Dec. 30, 2012)
20. In re: Alleged Cartelization by Steel Producers, (2014) 28
CompLR 145 (CCI), ¶ 34
21. In re: Aluminium Phosphide Tablets Manufacturers, S.M.C. 32
No. 02 of 2011 (CCI)
22. In re: Anti-competitive conduct in the paper 34
manufacturing industry v. Banwari Paper Mills Ltd., S.M.C.
No. 05 of 2016
23. In re: Federation of Hotel & Restaurant Assn. of India v. 10
MakeMyTrip India Pvt. Ltd., C. No. 14 of 2019 (CCI)
24. In re: Jasper Infotech Private Limited and Kaff Appliances 9
Ltd., C. No. 61 of 2014 (CCI)
25. In re: Jasper Infotech Private Limited and Kaff Appliances 8
Ltd., C. No. 61 of 2014 (CCI)
26. In re: International Cylinder Pvt. Ltd., Appeal No. 21 of 35
2012 (COMPAT)
27. In re: Prime Mag Subscription Services Pvt. Ltd. v. Wiley 10
India Pvt. Ltd. & John Wiley & Sons Ltd., C. No. 07 of 2016
(CCI)
28. In re: Shri Avtar Singh v. Ansal Township & Land 16
Development Ltd., (2014) Comp LR 154 (CCI)
29. Indian Paint & Coating Assn. v. Kanoria Chemicals & 17
Industries Ltd., C. No. 42 of 2016 (CCI)
30. Atos Worldline India Pvt. Ltd. v. Verifone India Sales Pvt. 21
Ltd., C. No. 56 of 2012 (CCI)
31. ESYS Information Technologies Pvt. Ltd. v. Intel Corp 7
32. HNG Float Glass Ltd. v. Saint Gobain Glass India Ltd., C. 23
No. 51 of 2011 (CCI)
33. Neeraj Malhotra, Advocate v. Deustche Post Bank Home 20
Finance Limited, C. No. 05 of 2019 (CCI Dec. 3, 2010)
34. Office of the Controller of Stores Southern Railway v. 29, 32
Mersen Pvt. Ltd., C. No. 02 of 2016 (CCI)
35. Rajasthan Cylinders & Containers Ltd. v. UOI, C. No. 3546 29, 31, 34
of 2014 (SC)
36. Ramesh Chandra Sankla v. Vikram Cement etc, (2008) 14 3
SCC 58
37. Saint Gobain Glass India Ltd. v. Gujarat Gas Co. Ltd., 17
(2015) Comp LR 431 (CCI)
38. Samir Agarwal v. ANI Technologies Pvt. Ltd., C. No. 37 of 17
2018 (CCI)
39. Sarwan Singh v. Kasturi Lai, (1977) 1 SCC 750 : AIR 1977 4
SC 265
40. Schott Glass India Pvt. Ltd. v. Kapoor Glass Pvt. Ltd., C. 21
No. 92 of 2012 (CCI)
41. Shamsher Kataria v. Honda Siel Cars India Ltd., C. No. 03 6
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of 2011 (CCI July 7, 2015)

42. Shri Ghanshyam Das Vij v. Bajaj Corp. Ltd., C. No. 68 of 9
2013 (CCI Oct. 12, 2015)
43. Shri Jyoti Swaroop Arora v. Tulip Infratech Ltd. on 3 28
February, C. No. 59 of 2011
44. Shri M.M. Mittal v. Paliwal Developers Ltd., C. No. 112 of 15
2015 (CCI)
45. Tata Engineering and Locomotive Co. Ltd. v. The Registrar 9
of Restrictive Trade Agreement, (1977) 2 SCC 55 : AIR
1977 SC 973
46. Technip S.A v. S.M.S Holding Private Ltd., (2005) 5 SCC 28
465, ¶ 13
47. Telefonaktiebolaget Lm Ericsson v. CCI, (2016) SC 107 4
48. UOI v. Hindustan Development Corp., (1993) 3 SCC 499 28
49. Vijay Gopal v. Inox Leisure Ltd., 2019 SCC OnLine CCI 4 14
S. No. STATUTES PAGE NO.
1. The Competition Act, 2002 3, 4, 9, 17
2. Patent Act, 1970 24
3. TRAI Act, 1997 1
S. No. BOOKS PAGE NO.
1. HALSBURY, HALSBURY LAW OF ENGLAND 61 (Butterworths 2
1973)
2. F. Wijckmans, & F. Tuytschaever, Vertical Agreements In 18
Eu
3. RICHARD WHISH & DAVID BAILEY, COMPETITION LAW 684 (OUP 27
157)
4. SANDRA MARCO COLINO, COMPETITION LAW OF THE EU AND UK 31
21 (OUP 2011)
S. No. REPORTS & GUIDELINES PAGE NO.
1. Communication from the Commission-Guidelines on the 31
applicability of Article 101 of the Treaty on the Functioning
of the European Union to Horizontal Co-operation
Agreements, EUROPA
2. EN, Guidelines on Vertical Restraints 9
3. EU Exemption Regulation 330/2010, ¶ 9 12
4. European Commission, Notice on the Application of the 26
Competition Rules to Access Agreements in the
Telecommunications Sector, European Union
5. EUROPEAN COMMISSION, REGULATION (EC) No 139/2004 19
MERGER PROCEDURE, (case m. 9094 - Amcor/Bemis)
6. Raghavan Committee Report, 1999, ¶ 4.3.2 30
7. U.S. Depatment of Justice & Federal Trade Commission, 34
Antitrust Guidelines for Collaborations Among Competitors
§ 1.2,2000
S. No. FOREIGN CASES PAGE NO.
1. Akzo Chemie BV v. Commission, (1991) 1 ECR 3359, ¶ 60 20
2. American Needle, Inc. v. National Football League, 560 US 33
183 (2010)
3. Board of Trade of the City of Chicago v. US, 246 US 231 13
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(1918) (USSC), 124

4. Continental Can v. Commission, C. No. 6 of 72 (ECJ) 18
5. Continental T.V. v. GTE Sylvenia, 433 US 36 (1997) 13
(USSC)
6. Delimitis v. Henninger Brau AG, 1991 ECR 935, ¶ 13 13
7. Dr Miles Medical Co. v. John D Park & Sons Co., 220 US 9
373 (1911)
8. Eastern Scientific Co. v. Wild Heerbrugg Instruments, Inc., 9
(1978) 572 F.2d 883 (1st Cir.)
9. Hilti AG v. Commission, C. No. T-30 of 89 (CFI) 20
10. Hoffmann v. South African Airways, (2002) 12 BLLR 1365 20
(CC)
11. Hoffmann v. South African Airways, (2002) 12 BLLR 1365 21
(CC)
12. In re: Plywood Antitrust Litigation, 655 F.2d 627 31
13. Leegin Creative Leather Products Inc. v. PSKS Inc 9
14. Michelin v. Commission, C. No. 322 of 81 (ECJ) 21, 26
15. Nungesser v. Commission, 1982 ECR 2015 (ECJ) 13
16. PolyGram Holding, Inc. v. FTC, 416 F.3d 29 33
17. Società Italiana Vetro SpA, Fabbrica Pisana SpA and PPG 33
Vernante Pennitalia SpA v. Commission of the EC, 1992
ECR 1403 (ECJ)
18. Societe Technique Mini ere v. Maschinendau Ulm, 1966 13
ECR 337 (ECJ), 120
19. Suiker Unie v. Commission, 1975 ECR 1663 30
20. Tetra Pak International SA v. Commission of the European 24
Communities, 1996 ECR 436
21. United Brands v. EC, 1978 ECR 207, ¶ 108 20, 21
22. United States v. Terminal Railroad Assn., 224 US 383 25
(1912) (USSC)
S. No. ARTICLES & ONLINE SOURCES PAGE NO.
1. Cases and Precedents: Vertical Restraints, AZB & 12
PARTNERS
2. Cuts International and National Law University, Jodhpur, 34
Study of Cartel Case Laws in Select Jurisdictions:
Learnings for the Competition Commission of India, CCI
3. Cyril Shroff and Nisha Kaur Uberoi, Cartel Enforcement in 28
India: Standard and Burden of Proof CPI Antitrust
Chronicle 1, (2013)
4. Cyril Shroff and Nisha Kaur Uberoi, India's New 30
Competition Regime Steadily Gaining Ground, 9
COMPETITION L. INT'L 75 (2013)
5. Dr. S. Chakravarthy, India's New Competition Act, 2002 - 34
A Work Still In Progress
6. Economic and Econometric Evidence in Competition Law: 30
an Empirical Perspective, UNCTAD
7. EUROPEAN COMMISSION, ONLINE GLOSSARY 11
8. GLOSSARY OF STATISTICAL TERMS, OECD 10
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9. Hart 0, Tirole J, Carlton D & Williamson OE, Vertical 12

Integration and Market Foreclosure, BROOKINGS PAPERS
ON ECONOMIC ACTIVITY MICROECONOMICS 205, 278-
280 (1990)
10. MM Sharma, Exclusivity Clauses In Commercial 9
Agreements-Issues Under Indian Competition Law,
MONDAQ
11. Nikolinakos, Access Agreements in the 26
Telecommunications Sector - Refusal to Supply and the
Essential Facilities Doctrine Under EC Competition Law, 20
ECLR
12. OECD ROUND TABLE CONFERENCE ON PROSECUTING 32
CARTELS WITHOUT DIRECT EVIDENCE
13. P.D. Sudhakar & K.K. Sharma, Competition law and policy 20
in India, CCI
14. Paul Daly, Jurisdictional error and administrative law 2
values, ADMINISTRATIVE LAW MATTERS
15. PHILIP SUTHERLAND, COMPETITION LAW OF SOUTH 26
AFRICA
16. Priya Urs and Rishi Shroff, The Cement and Tyre Cartels: 29
What India Can Learn from the US and EU, INDIA LAW
JOURNAL
17. Rossella Incardona, Distribution Agreements under EC 11
Competition Law, SSRN
18. Roundtable on Prosecuting Cartels without Director 30
Evidence, OECD, DAF/COMP/GF (2006) 7
19. SM DUGAR, SM DUGAR'S GUIDE TO COMPETITION ACT, 17
2002 67 (LexisNexis 2017)
20. Shashwat Awasthi & Utkarsh Khandelwal, Flashlights 33
Order: Changing Dimensions in Trade Association
Cartelisation, 5 IJARIIT
STATEMENT OF JURISDICTION
The Petitioners have approached the Hon'ble Supreme Court of Nidavellir under
ARTICLE 136 OF THE CONSTITUTION OF NIDAVELLIR. The Special Leave Petitions are
admitted as civil appeals under SECTION 53T OF THE ACT. The Respondent, Nidavellir
Federal Trade Commission submit to the jurisdiction of this Hon'ble Court.
ARTICLE 136 OF THE CONSTITUTION - Special leave to appeal by the Supreme Court:
“(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence, or order in any cause or matter passed or made by any court or tribunal
in the territory of India.
Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.”
SECTION 53T OF THE ACT - Appeal to Supreme Court:
“The Central Government or any State Government or the Commission or any
statutory authority or any local authority or any enterprise or any person aggrieved
by any decision or order of the Appellate Tribunal may file an appeal to the
Supreme Court within sixty days from the date of communication of the decision or
order of the Appellate Tribunal to them;
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Provided that the Supreme Court may if it is satisfied that the applicant was
prevented by sufficient cause from filing the appeal within the said period, allow it
to be filed after the expiry of the said period of sixty days.”
STATEMENT OF FACTS
[BACKGROUND FACTS]
The Republic of Nidavellir has witnessed increasing innovations, tech start-ups, and
consumer awareness regarding greenhouse gas emissions and environmental pollution
due to increased industrialization and overpopulation. The Government of Nidavellir
[hereinafter GoN] has launched initiatives for the development of vehicular technology
and related infrastructure.
The Nidavellir Federal Trade Commission [hereinafter NFTC] established under the
Nidavellir Antitrust Regulation Act, 2002 [hereinafter NAR] treats the decisions of
courts and antitrust regulators of common law countries to have high persuasive
value. Telecom Variance Authority of Nidavellir [hereinafter TVA] governed under TVA
Act, 1991 allocates, regulates, licenses, and distributes frequency allocation in
Nidavellir.
[EITRI-ULTRON AGREEMENT]
Eitri Manufacturers Limited [hereinafter Eitri] is a major manufacturer of wireless
charging electric cars in the world. It has a market share of 51% based on the value of
sales and 30% in terms of volume in the electric automotive manufacturing industry.
It has developed a technology - Car Smart Chip [hereinafter CSC] fitted into the
electric cars which intercept 8G Ultra High Frequency [hereinafter UHF] up to a range
of 100km. Ultron Telecom Limited [hereinafter Ultron] is the sole network service
provider of 8G network frequency.
Eitri has entered into an exclusive distribution agreement with Ultron to enable the
CSC in Eitri's electric cars to access 8G UHF to remotely charge them. Further, Eitri
imposed an unfair condition on Ultron to not engage in a similar business relationship
to provide the network services to a comparable remote charging facility in other
electric cars.
[JOINT VENTURE]
Odin Automobiles Limited, Hela Motor Company, and Fury Vehicles Corporation
[hereinafter OHF] are three competitors and the most popular car manufacturing
companies in Nidavellir. They have formed a Joint Venture [hereinafter JV] and started
selling electric cars with Integrated Circuit Chip [hereinafter ICC].
[LICENSING ISSUE]
GoN notified the automotive manufacturers using 8G that they need to obtain a
license akin to telecom service providers to use frequency for mobility. However, it was
found that the JV was using an 8G network frequency without a license. Thus, a case
was initiated under TVA to investigate into the matter.
[PROCEEDINGS]
NFTC proceedings against Eitri - The NFTC received anonymous information that
Eitri and Ultron were resorting to exclusive distribution arrangements and Eitri was
abusing its dominant position in the market. Thus, it passed an order under § 26(1)
for the DG to start investigation.
Before High Court of Sakaar- Eitri filed a writ petition in the Hon'ble High Court
[hereinafter HC] of Sakaar seeking that the DG investigation be stayed. However, the
Hon'ble HC ordered the DG's investigation to continue.
NFTC Proceedings against OHF - During investigation into Eitri's conduct, the DG
found material against JV. NFTC passed a suo moto order under Section 26(1) of the
Act and directed the DG to initiate an investigation against OHF. The DG found
material in the form of email chains and WhatsApp messages exchanged among the
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executives of OHF that indicated collusion among OHF. It was found that they were
exchanging commercially sensitive information, like deciding tender bids, etc. beyond
the purview of the JV. There was also an apprehension that they might have indulged
in price manipulation under the garb of the JV.
Thereafter, NFTC found Eitri in violation of § 3(4) and § 4 of the Act and issued a
cease-and-desist order. Further, it found OHF to be in violation of § 3(3) r/w § 3(1) of
the Act and levied a penalty of 3 crore on each of them.
Proceedings before the National Appellate Tribunal [hereinafter NAT]: The Tribunal
heard the appeal by OHF against NFTC's decision. NAT declined to alter the collusion
charges as well as the quantum of penalty levied against OHF. Further, it also did not
alter the decision against Eitri.
Appeal before the Supreme Court [hereinafter SC]- OHF and Eitri appealed before
the Hon'ble SC of Nidavellir vide SLPs. Taking cognizance of the similarities in the
broad issues in the two SLPs, the Hon'ble SC has tagged the SLPs together for a
hearing.
ISSUES FOR CONSIDERATION
˜ ISSUE A ˜
WHETHER NFTC'S JURISDICTION SUPERSEDES THAT OF THE TVA AND THE NFTC ERRED BY
PASSING I TS FINAL ORDER WHEN THE MATTER WAS SUB-JUDICE BEFORE THE TVA?
˜ ISSUE B ˜
WHETHER EITRI I S I N VIOLATION OF SECTION 3(4)(C) OF THE ACT?
˜ ISSUE C ˜
WHETHER EITRI I S I N VIOLATION OF SECTION 4 OF THE ACT?
˜ ISSUE D ˜
WHETHER ODIN, HELA, AND FURY VIOLATED SECTION 3 OF THE ACT?
SUMMARY OF ARGUMENTS
ISSUE A
It is submitted that NFTC has jurisdiction over the matter and it can pass its final
order. In the present case the jurisdiction of TVA is regarding telecom matters only
and it cannot take jurisdiction from NFTC on competition issues. Jurisdictional facts are
a sine qua non to assume jurisdiction. Here, NFTC received anonymous information
regarding competition issue violation and thus NFTC has jurisdiction over the matter.
Further, Section 60 of the act provides non obstante clause, and thus, in a conflict
between TVA and NFTC, the jurisdiction of NFTC will prevail. Further, the issue before
TVA was related to JV of OHF not using license for using 8G UHF, which is different
from the present matter, thus the matter before NFTC is not sub judice in TVA.
Furthermore, the matter was prima facie related to competition issue and
anticompetitive practice by enterprise, it is the duty of the NFTC to direct the Director
General (“DG”) to initiate an investigation into issues under section 26(1). Hence, it is
submitted that NFTC can pass its final order on the matter.
ISSUE B
It is submitted that Eitri has violated §3(4)(c) of the Act by entering into an
exclusive distribution agreement with Ultron. The prerequisites of the section are
fulfilled since both Eitri and Ultron are enterprises operating at different levels of the
production chain in different markets. There exists an agreement between them to
restrict the supply of 8G network frequency in the market. Further, the exclusive
distribution agreement between Eitri and Ultron causes AAEC because Eitri has
sufficient market power in the electric automotive industry with a market share of
more than half. Additionally, Eitri has a strong market presence. It exercises a 100%
monopoly in manufacturing 8G remote charging cars. Any exclusive agreement by Eitri
is bound to negatively affect competition in the market. Furthermore, the exclusive
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distribution agreement has negative effects on the market. It has created a barrier for
new entrants in the market and has led to the foreclosure of the market. The exclusive
distribution agreement does not have any positive effects, and instead causes accrual
of harm to the consumers, and hinders the production of goods in the market. It has
also hampered economic development by foreclosing competition in the market.
Therefore, the negative factors under §19(3) outweigh the positive factors and have
led to AAEC.
ISSUE C
It is submitted that § 4 of the act provides that no enterprise shall abuse its
dominant position. In the present case, relevant market is market of electric
automotive manufacturing in the state of Nidavellir. The relevant product market is
market for manufacturing electric vehicles as electric cars are different from other
automobiles and are not substitutes of each other. Further, Eitri is at dominant
position in the identified market. Since it is an established car manufacturing
company, having highly advanced CSC technology, with huge market share of 51% in
the identified market. Eitri is also the only manufacturer who provide remote charging
facility in electric cars using 8G UHF, and thus consumers are dependent on Eitri.
Furthermore, Eitri has abused its dominant position in the market by imposing unfair
condition on Ultron. Due to the condition Ultron was not able to provide 8G network to
other manufacturer which led to denial of market access. By virtue of agreement, it
also restricted essential facility and thus caused loss to consumers and competitors.
Hence, Eitri has abused its dominant position in the market.
ISSUE D
It is submitted that OHF have violated §3(3) of the Act because there exists an anti
-competitive agreement among them. The term agreement includes an
“understanding” or “concerted action” with a common motive. The agreement among
OHF is to indulge cartelization. Through this anti-competitive agreement, they have
indulged in collusive behavior by sharing commercially sensitive information beyond
the purview of the JV. Through the exchange of this information, OHF have indulged in
bid-rigging and price manipulation under the garb of the JV. Further, the proviso
under §3(3) does not apply since OHF have acted beyond the scope of the JV. The
information exchanged by the executives of OHF was not restricted to the functioning
of the JV alone. Furthermore, there is strong evidence in the form of email chains and
WhatsApp messages exchanged among the executives of OHF to indicate their
collusive behavior beyond the purview of the JV. Agreements under §3(3) are per se
illegal, and presumed to cause AAEC. Since OHF have indulged in cartelization, there
exists a presumption of AAEC and the negative factors under §19(3) outweigh the
positive factors. Therefore, OHF have violated §3(3) by cartelizing under the garb of
the JV.
WRITTEN ARGUMENTS
ISSUE A: WHETHER NFTC'S JURISDICTION SUPERSEDES THAT OF THE TVA AND THE
NFTC ERRED BY PASSING ITS FINAL ORDER WHEN THE MATTER WAS SUB-JUDICE
BEFORE THE TVA?
1. It is submitted that NFTC has well established jurisdiction over the issue and
that it can pass its final order as firstly, NFTC's jurisdiction supersedes that of TVA [I];
and secondly, NFTC has not erred by passing its final order when the matter was sub
judice before the TVA [II].
I. NFTC'S JURISDICTION SUPERSEDES THAT OF TVA
2. The commission can supersede jurisdiction of the sectoral regulator if the matter
is regarding competitive issues and that sectoral regulator does not deal with it. It is
submitted that, NFTC can supersede TVA's jurisdiction as firstly, jurisdiction of NFTC
and TVA do not override each other [A]; and secondly, Jurisdictional facts in favour of
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NFTC [B]; and lastly, non-obstante clause applies. [C]

A. Jurisdiction of NFTC and TVA do not override each other in present case
3. The NFTC and TVA operate in entirely different fields, which is discernible from
the Preambles of the respective legislations. The purpose of TVA is promotion and
protection of the interests of the service providers and the consumers in the telecom
1
sector. The purpose of NFTC is to prevent practices having adverse effect on
competition, to protect interests of consumers.
4. The matters regarding competition falls in the jurisdiction of NFTC and no other
sectoral regulator can override this jurisdiction. In Consumer Online Foundation v. Tata
2
Sky Ltd , the commission held that “despite the existence of competition mandate
within sectoral laws, the power to investigate allegations of anti-competitive conduct
continues to rest with the CO”.
3
5. Further, in SEBI's case court distinguished jurisdiction of two regulator and held
that “SEBI is to regulate the securities markets. Thus, it acts as the regulator of the
securities market, unlike the Controller of Patents and hence no other regulator can
take that jurisdiction from SEBI”
6. In the present case, the jurisdiction of TVA is regarding telecom matters only
and it cannot take jurisdiction from NFTC on competition issues. Thus, issues
pertaining to exclusive distribution agreement under section 3(4)(c), and abuse of
dominance under § 4, falls under NFTC's jurisdiction.
B. Jurisdictional facts in favour of NFTC
7. Jurisdictional facts refer to “facts upon which the jurisdiction of a court, or an
authority depends”4. If there are jurisdictional facts present then the authority has
jurisdiction to deal with the issue. If such facts do not exist, the authority cannot act,
5
it is a sine qua non to assume jurisdiction.
8. It is submitted that firstly, it is prima facie a case of NFTC as jurisdictional facts
are present [i]; and secondly, there is absence of jurisdictional facts of TVA [ii]
[i] Prima facie case of NFTC as jurisdictional facts are present
9. To have jurisdiction on the matter it is important that the authority has
jurisdictional facts.6 In Ramesh Chandra Sankla v. Vikram Cement case7, court held
that “if the jurisdictional fact does not exist, the tribunal cannot act on the matter”.
10. A direction to cause an investigation can be made by CCI only if it is of the
8
opinion that there exists a prima facie case. Having a prima facie opinion is sin qua
non for passing an order under section 26(1) of the act.9 If the commission has ex-
facie opinion on the case, then it will be deemed as without jurisdiction and cannot
10
pass an order.
11. In the present case, NFTC received an anonymous information which alleged
that Eitri and Ultron are resorting to exclusive arrangements under §3. Further, Eitri is
abusing its market position violating the provisions of §4 of the Act. Furthermore, DG
also found that OHF in violation of §3(3) of the act. Since this issue relates to the
jurisdiction of NFTC, there exist jurisdictional facts which falls within the scope of NFTC
only. Thus, NFTC can pass an order under §26(1) of the Act.
[ii] Absence of jurisdictional facts of TVA
12. If there are no jurisdictional facts present then the regulator cannot overtake
jurisdiction. In the present case, there is no jurisdictional facts present which shows
TVA has jurisdiction over competition matter. Further, the issues are related to
violation of § 3 and 4 thus, TVA has jurisdiction over them.
C. Non-obstante clause applies
13. “A non-obstante clause is a legislative device which is employed to give
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overriding effect to certain provisions over some contrary provisions that may be found
either in the same enactment or some other enactment.”11 It provides that in case of
conflict between two statutes, if there is a non-obstante clause then the provision of
that statute will affect it.
14. § 60 of the Act clearly provides a non obstante clause12 which ascertains the
supremacy of competition legislation within the domain of competition enforcement.
The TVA is devoid of such a non- obstante clause and thus in case of conflict between
the two, NFTC will prevail over the TVA act.
II. NFTC HAS NOT ERRED BY PASSING I TS FINAL ORDER WHEN THE MATTER WAS SUB-JUDICE
BEFORE THE TVA
15. A matter is said to be sub judice if it is pending before some other authority. It
is important that the matter pending is same and not on a different issue. In
consequence, it is submitted that NFTC has not erred by passing its final order as
firstly, issues before NFTC are different from issue before TVA [A]; and secondly, NFTC
followed its statutory duty [B].
A. Issue before NFTC is different from Matter sub judice before TVA
16. The rule of res sub judice won't apply if the issues before NFTC and TVA are
different. A competition law aspect is different from other aspects even though the
13
larger matter is under investigation. Further, preamble of the competition act gives
power to CCI to have jurisdiction over competition issues.
17. In the present case, Eitri filed a complaint with the TVA on 3 December, 2021
alleging that the JV was offering 8G UHF charging facilities, without having a valid
license. The issue was solely related to JV not having a license to use 8G UHF and
nowhere related to competition law.
18. Further, the issue before NFTC is regarding anti-competitive practice by Eitri
and OHF. Further the issue before TVA is not related to anti-competitive practices.
Furthermore, as there is no technical telecom matter present here, there is no
requirement to take suggestion of TVA under section 21 A of the act.
19. Hence, it is submitted that, NFTC has well established jurisdiction over the
issue before it. Further, NFTC can pass its final order as the matter pending before TVA
is different from the one before NFTC.
B. NFTC followed its statutory duty
20. The Preamble of the Competition Act provides CCI with the duty to prevent
practices having adverse effect on competition and to promote and sustain
competition in markets.14 Further, § 18 of the Act provides it with the duty to protect
15
the interests of consumer.
21. Further, § 26(1) of the act provides that to check anti-competitive practice CCI
shall direct the DG to cause an investigation to be made into the matter.16
Furthermore, § 33 of the Act provides that it is the duty of CCI to even take preventive
17
steps to check anti-competitive practices.
22. In the present case, as the matter was prima facie related to competition and
anticompetitive practice by enterprises. It is the statutory duty of the NFTC to direct
the DG to initiate an investigation under § 26(1). Further, after getting sufficient
18
evidence, NFTC can pass its final order under § 27 of the Act.
23. Conclusively it is submitted that, NFTC has well established jurisdiction over
the issue. Further, NFTC can pass its final order as the matter pending before TVA is
different from the present. Furthermore, if NFTC had waited for TVA's final judgement
then it would defeat the purpose CCI's investigation.
ISSUE B: EITRI HAS VIOLATED SECTION 3(4)(C) OF THE ACT
24. An agreement is anticompetitive if it causes or is likely to cause AAEC in the
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market.19 In consequence, it is humbly submitted that Eitri has violated §3(4)(c) of

the act as firstly, the pre-requisites of § 3(4) are fulfilled [I]; secondly, there exists an
exclusive distribution agreement between Eitri and Ultron [II]; and lastly, the
agreement causes AAEC [III].
I. THE PREREQUISITES OF SECTION 3(4) ARE FULFILLED
25. For an agreement to fall under § 3(4) certain prerequisites must be fulfilled. In
consequence, it is submitted that the prerequisites under § 3(4) of the Act are fulfilled
because firstly, Eitri and Ultron are enterprises [A]; secondly, Eitri and Ultron operate
at different levels of production chain in different markets [B].
A. Eitri and Ultron are enterprises
26. An ‘enterprise’ is any person who is engaged in production, storage, supply,
distribution, acquisition or control of articles or goods, or the provision of services, of
any kind.20 The term ‘person’ is broad enough to include any company, firm, or body
21
of associations.
27. In the present case, Eitri is an electric car manufacturer22, and Ultron is a
23
network services provider. Eitri and Ultron fall within the meaning of enterprises
since they are engaged in manufacturing [production] and provision of services,
respectively. Therefore, it is submitted that Eitri and Ultron are enterprises.
B. Eitri and Ultron operate at different levels of the production chain in different
markets
28. The enterprises must operate at different levels of the production chain in
different markets.24 In the present case, Eitri is operating in the downstream market
25
of car manufacturers , whereas Ultron is operating in the upstream market by
supplying 8G frequency to Eitri.26
29. Furthermore, Ultron is selling the 8G frequency network to Eitri for use in the
27
electric cars manufactured by Eitri. Therefore, it is submitted that Eitri and Ultron
operate at different levels of the production chain in different markets. In conclusion,
the pre-requisites of § 3(4) are fulfilled.
II. THERE I S AN EXCLUSIVE DISTRIBUTION AGREEMENT BETWEEN EITRI AND ULTRON
30. § 3(4) provides an inclusive list of agreements that may be anti-competitive.28
It is submitted that there is an exclusive distribution agreement between Eitri and
Ultron because firstly, there is an agreement between Eitri and Ultron [A]; and
secondly, the agreement is in the nature of exclusive distribution [B].
A. There is an agreement between Eitri and Ultron
31. An agreement includes any arrangement, understanding, or action in concert,
and need not be in writing or legally enforceable.29 The existence of an agreement can
also be inferred from coercive conduct when such conduct is used for imposing a
30
unilateral policy with the tacit acquiescence of other parties.
31
32. In the present case, the deal between Eitri and Ultron is an arrangement for
the imposition of a coercive unilateral policy. Moreover, considering that Ultron
explicitly decided to refuse the JV by citing that it is contractually bound by the
agreement with Eitri32 shows the tacit acquiescence of Ultron to the agreement.
Therefore, it is submitted that there is an agreement between Eitri and Ultron.
B. The agreement is in the nature of exclusive distribution
33. An exclusive distribution agreement includes “any agreement to limit, restrict
or withhold the output or supply of any goods or allocate any area or market for the
disposal or sale of the goods”.33 It operates as a restriction on the seller.34 Further,
35
exclusive arrangements are worse for competition than non-exclusive agreements.
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34. In the present case, Eitri has restricted Ultron to sell 8G network frequency only
36
to Eitri. By imposing this restriction, Eitri has restricted the supply of 8G network
frequency in the market. Therefore, it falls within the definition of an exclusive
distribution agreement under § 3(4)(c). Therefore, it is submitted that the agreement
between Eitri and Ultron is in the nature of an exclusive distribution agreement.
III. THE AGREEMENT CAUSES AAEC IN THE RELEVANT MARKET
37 38
35. An agreement under § 3(4) will be in contravention of § 3(1) of the Act only
if it causes or is likely to cause AAEC in the market.39 An essential requirement is to
40
prove the adverse effect of an exclusive distribution agreement. These agreements
41 42
are not per se illegal. Rule of reason must be applied to them.
36. In consequence, it is submitted that the exclusive distribution agreement
between Eitri and Ultron causes AAEC in the market because firstly, Eitri has market
power [A]; and secondly, the negative effects of the agreement outweigh the positive
effects [B].
A. Eitri has market power
43
37. An enterprise with substantial market power is more likely to cause AAEC.
Market power refers to the ability of the firm to raise and maintain prices above the
level which would prevail in a competitive market.44 Generally, firms holding more
45
than 30% of the market share are considered to possess sufficient market power.
38. Further, in EU jurisprudence too, an enterprise is not protected under the block
46
exemption regulation of the vertical guidelines if its market share exceeds 30%.
Court held in Ghanshyam Das v. Bajaj47 that an agreement will not cause a significant
effect on competition if the enterprise has a weak position in the market.
39. Furthermore, when both the parties have considerable presence in their
respective markets and enter into a restrictive arrangement that leads to a refusal to
deal with a few parties and an exclusive arrangement between them, then it will
potentially cause AAEC in the market.48
40. In the present case, Eitri is a major manufacturer of wireless electric cars in the
49
world and had a stronghold on the market with a share of 51 % in the electric
automotive industry. It is the only manufacturer selling remote charging cars with 8G
frequency, thereby exercising a 100% monopoly in that area.50 Therefore, considering
the market share and strong position of Eitri, it is argued that Eitri has significant
market power to cause AAEC in the market.
B. The Negative Effects of the agreement Outweigh The Positive Effects
41. Whether an agreement causes AAEC is always a balancing act between the
51
positive and negative factors. Under § 19(3), clauses (a) to (c) are the negative
factors that restrict competition in the market, whereas clauses (d) to (f) are the
positive factors that enhance efficiency.52 When the negative factors outweigh the
53
positive factors, it is said that the agreement causes AAEC in the market.
42. In consequence, it is submitted that the negative effects of the agreement
outweigh the positive effects as firstly, the agreement between Eitri and Ultron causes
negative effects on the market [i]; and secondly, the agreement has no positive
effects [ii].
[i] The agreement between Eitri and Ultron causes negative effects
43. It is submitted that the agreement between Eitri and Ultron causes negative
effects because firstly, it creates barriers to new entrants [a]; and secondly, it leads to
foreclosure of competition [b].
a. It creates barriers to new entrants
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44. When new entrants are discouraged from entering the market, it is considered
54
an entry barrier. Vertical restraints often increase entry barriers to potential
55
competitors. An exclusive distribution agreement restricts the entry of other players
into the market by affecting intra-brand competition. Moreover, it affects inter-brand
56
competition by limiting the outlets of distribution.
45. In the present case, Ultron is the sole 8G network frequency provider in the
57
market. Eitri's restriction on Ultron to deal exclusively with Eitri is creating barriers
to entry for potential competitors wanting to enter the market of electric cars with 8G
technology. Further, the exclusive distribution agreement between Eitri and Ultron
hampers the prospects of potential competitors. Hence, it is submitted that the
agreement causes barriers to new entrants in the market.
b. It leads to foreclosure of the market
58
46. Vertical restraints are likely to cause market foreclosure. This often happens
by raising the barriers to entry or expansion in the market.59 Further, they affect
60
competition at both intra and inter-brand levels. The act of entering into exclusive
agreements by dominant undertakings causes market foreclosure.61
47. In the present case, the exclusive distribution agreement between Eitri and
Ultron62 has led to market foreclosure for other players who would want to use 8G
frequency for their remote charging cars. Further, since Ultron is the only player who
63
can provide 8G frequency , the agreement has completely withheld the supply of 8G
frequency, thereby hindering entry into the market.
48. Hence, the exclusive distribution agreement leads to foreclosure of the market.
Conclusively, it is submitted that the agreement between Eitri and Ultron has caused
negative effects on the market by causing barriers to new entrants, driving out
existing competitors, and foreclosing the relevant market.
[ii] The agreement has no positive effects on the market
49. The pro-competitive and anti-competitive effects of an agreement must be
evaluated on a case-to-case basis64, and a net negative effect65 renders the
66
agreement void. While determining the net effect on competition, the restrictions in
the agreement have to be assessed in the context of the market.67 Moreover, the
vertical restraints imposed by the agreement must be reasonable to have a positive
68
effect on competition in the market.
50. In consequence, it is submitted that the agreement does not have positive
effects on the market because firstly, there is accrual of harm to consumers [a];
secondly, there is no improvement in the production of goods or provision of services
[b]; and lastly, the agreement does not promote technical, scientific and economic
development [c].
a. There is accrual of harm to the consumers
51. The most important aspect of Competition law is to protect the interests of the
consumers.69 CCI is obligated to promote competition in the market by curbing
70
anticompetitive practices. Foreclosure in the market results in restrictions on the
consumers and loss of consumer welfare.71
52. As argued above72, the exclusive distribution agreement has led to the
foreclosure of the market, which will eventually lead to the loss of consumer welfare.
The reduction in choice will lead to a loss to consumers, thereby leading to harm to
consumers. Hence, it is submitted that there is no accrual of benefits to the
consumers.
b. There is no improvement in the production of goods or provision of services
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53. An agreement improving the production of goods or provision of services, is

considered to have a positive effect on competition.73 In the present case, the
agreement restricts the supply of 8G frequency by stipulating that Ultron shall only
74
provide 8G frequency to Eitri.
54. Further, this restriction hampers the ability of other players to utilize 8G
frequency for their products. In light of this, it is argued that the agreement is
hampering the production of goods or provision of services. Hence, the agreement
causes no improvement in the production of goods or provision of services.
c. Eitri does not promote technical, scientific, or economic development
55. The agreement hampers the technical and scientific development in the electric
automotive industry by restricting the supply of 8G network frequency. Since Ultron is
the sole provider of 8G75, the agreement restricts any other player from utilizing 8G to
develop a similar technology.
56. Hence, there is no technical, scientific, or economic development as a result of
the agreement. Therefore, the agreement does not have any positive effects on the
competition. In conclusion, it is submitted that the negative effects of the agreement
between Eitri and Ultron outweigh the positive effects.
57. Conclusively, it is most humbly submitted that Eitri has violated § 3(4)(c) of
the Act because there exists an exclusive distribution agreement between Eitri and
Ultron. Eitri's market power along with the negative effects of the agreement has
caused AAEC in the market.
ISSUE C: EITRI HAS VIOLATED §4 OF THE ACT
58. It is humbly submitted that the exclusive distribution agreement entered into
by Eitri amounts to an abuse of dominance violating §4 of the Act as firstly, the
relevant market is the market for electric automotive manufacturing in the state of
Nidavellir [I]; secondly, Eitri occupies a dominant position in the relevant market; and
[II] and lastly, Eitri has abused its dominant position under multiple clauses of §4
[III].
I. THE RELEVANT MARKET I N THE PRESENT CASE I S THE MARKET OF ELECTRIC AUTOMOTIVE
MANUFACTURING I N THE STATE OF NIDAVELLIR
59. To ascertain abuse of dominance, it is essential to determine the relevant
76
market. The relevant market can be determined with reference to the relevant
product market and the relevant geographic market.77 In consequence, it is submitted
that firstly, the relevant geographic market is the state of Nidavellir [A]; and secondly,
the relevant product market is electric automotive manufacturing industry [B].
A. Relevant geographic market is state ofNidavellir
60. The relevant geographic market78 is the area in which the conditions of
competition for supply or demand of goods or services are similar and can be
79
distinguished from the other neighbouring area. It is important to consider certain
factors like “regulatory trade barriers, local specification requirements & consumer
preference, while delineating the relevant geographic market.”
61. In the present case, condition throughout the Republic of Nidavellir is
homogenous. Further the enterprises mentioned here are national brands and have
supplies in the whole country. Therefore, in light of the above, relevant geographic
market should be restricted to the republic of Nidavellir.
B. Relevant product market is electric automotive manufacturing industry
62. In economics, a market is defined by a set of primitives: namely, consumer
preferences and technology. Relevant product markets may be established by all or
any factors listed under §19 (7).80
63. It is submitted that relevant product market is the market for manufacturing of
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electric automobiles due to firstly, the physical characteristic of electric cars is

different from other automotive [i]; secondly, consumer preference differentiates
electric cars from other cars [ii]; and lastly, the narrow market should be considered
[hi].
[i] The physical characteristic of electric cars is different from other cars
64. Physical characteristic plays an important role while deciding relevant product
market.81 Two similar products can be differentiated on the basis of physical
82 83
characteristics. In Indian Paint & Coating Association commission delineated
market on the basis of physical characteristic and held that “due to product being less
hazardous…it shall form a separate relevant product market.”
65. In the present case, the physical characteristic of electric cars is different from
other automobiles. Electric cars use telecom frequency to charge, while other cars run
on petroleum products.84 Further, CSC-based electric cars can be charged remotely85
which makes them a different product from other automobiles and thus constitute a
separate product market.
[ii] Consumer Preference differentiates between electric cars from other car
86
66. Consumer preference is an important factor while determining relevant
product market.87 Court delineated the car market on the basis of consumer
88
preference . It is submitted that the market for electric manufacturing can be
constituted as a separate product market as firstly, not fulfillment of demand
substitutability [a]; and secondly, non-fulfillment of supply-side substitutability not
qualified [b].
a. Demand side substitutability not fulfilled
67. Relevant product market is primarily determined on the basis of demand side
89
substitutability. In the present case, there is enhanced awareness amongst the
population to address the effects of environmental pollution. The people of Nidavellir
could distinguish between electric cars which are beneficial for environment, and cars
with massive emission which causes greenhouse effect.
68. Thus, it is submitted that on the basis of consumer preference and due to non-
fulfilment of demand side substitutability, there exist separate market for electric cars
and other automotive.
b. Supply Side Substitutability not qualified
69. To determine relevant product market, the supply-side should also be
considered. In Can v. Commission90 the court held that “the supply side of the market
should be considered for the purpose of defining the market”. For two items to be
deemed supply-side equivalents, one of their suppliers must already hold all of the
assets required to create the other.
70. Further, if the producer can shift to other products, without incurring significant
additional costs, or risks in response to small and permanent changes in relative prices
then the market may be broadened to include the products that those suppliers are
already producing.
71. In the present case, a producer cannot easily shift from automotive to electric
automotive manufacturing as it requires a huge amount of funds. Thus, it is submitted
that the relevant product market is the market for electric automotive manufacturing.
[iii] A narrow market should be considered
72. It is an established principle of competition law that narrow market should be
considered while defining relevant product market. A market definition which is too
broad assists the dominant firm to escape its liability. In Case M.9094 -
AMCOR/BEMIS91 European commission rejected the claim of the party to consider
broad market and defined the narrow market.
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73. In the present case whole automotive market is too broad to be considered as
relevant product market. The automobile sector consists of all the vehicle which runs
on motor. It includes every other vehicle including two-wheelers as well, which have
no link with the present case, and thus is too broad.
74. Further, Eitri is only electric automobile manufacturer and does not deal with
any kind of vehicle. Furthermore, anti-competitive activity took place in electric
automotive market and not in whole automotive sector. Thus, it is submitted that
narrow market should be considered and hence the relevant product market should be
restricted manufacturing of electric automobile only.
II. Eltri Is Dominant In The Identified Market
75. Determination of dominant position is an essential condition under section 4 of
the act. It is submitted that Eitri is dominant in the relevant market as firstly, it can
operate independently of competitive force [A]; and secondly, it can affect its
competitors or consumers or the relevant market in its favour[B]
A. Eitri can operate independently of competitive forces.
76. An enterprise is said to operate independently of competitive forces if it is not
affected by the actions of competitors in the market. It is submitted that Eitri can
operate independently of competitive forces as firstly, it has high market share [i];
secondly, size and resources of Eitri [ii]; thirdly, size and resources of competitors
[iii]; and lastly, vertical integration of Eitri and creation of entry barriers [iv].
[i] It has high market share
77. Market share indicates the dominance of an enterprise in a relevant market.92 It
provides useful first indications of the market structure and helps in understanding
93
competition in the market. Market share can be considered as a factor to determine
94
dominance. It may not be the sole criterion to determine dominance in the market
95
but holds a high persuasive value. The courts have held firm's dominant on the basis
96
of high market share.
78. Market share above 50 % should be considered very high97. EU held that98
“absence of exceptional circumstances pointing the other way, an undertaking with
99
such a market share will be presumed dominant” . A market share consists of two
relevant factors; (a) market share of the alleged dominant company; (b) comparing
market share with other competitors.
79. In the present case, Eitri holds a market share of 51% in the electric
automotive manufacturing industry and thus, it should be presumed as dominant in
the relevant market.100 Further, the market share of other players is very less as
compared to Eitri.
a. Herflndahl-Hirschman Index
80. Herfindahl-Hirschman Index is a mathematical tool that helps in determining
dominant players with the help of market share. Here, square of individual share is
used to determine concentration of market. The concentration level will be low where
the total is below 1,000; moderate if between 1,000 and 1,800; and high where it is
above 1,800.
81. In sprocket industry case HHI was 2600 and thus, the court used this index to
determine dominant player. In the present case, Eitri holds 51% of the market share
which means HHI is 2601 which shows market is less concentrated and thus Eitri
holds dominant position in the market.
[ii] Size and resources of the Eitri
101
82. An enterprise is considered dominant in terms of large size and resources.
Huge size and advanced resources help the enterprise to have an advantage over other
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players and allow them to create barriers. Superior technology102 is considered an

103 104
indicator of dominance in the market.
83. Superior technology should be considered as a factor to determine dominance.
105
In the Atos Worldline case court held that “there were mainly two players in the
relevant market, and that Verifone was in an advantageous position compared to its
competitor in the relevant market in terms of size, resources, and economic
strength”.106
84. It is submitted that Eitri is an established car manufacturing company with
advanced technology and resources. Further, Eitri is the owner of highly advanced CSC
107
technology which charges cars remotely. Thus, due to this high technology and
resources Eitri is dominant in the relevant market.
[iii] Size and resources of competitors
85. The commission may consider size and importance of the competitors108 to
109
ascertain an enterprise's dominant position. If the size of other competitors is small
then, enterprise having higher market share can easily dominate them.
86. In the present case, JV is a newly formed enterprise and does not have many
resources as compared to Eitri. Further, the market share of JV is just 15%110 which is
very less as compared to Eitri which has humungous market share of 51 %. Further,
only Eitri is authorized to use 8G UHF for remote charging and no other competitor in
the market can do it. Thus, Eitri should be considered as dominant in the relevant
market.
[iv] Vertical integration of Eitri and creation of entry barriers
111
87. Vertical integration can be a factor to determine dominant position in the
market.112 The commission is required to check vertical integration of enterprise
especially those made by contracts. It can foreclose access to a segment of the
market, since competitors of the integrating firm often can no longer deal with such an
enterprise.
88. In the present case, Eitri made an exclusive distribution agreement with Ultron.
Due to this contract, Ultron cannot deal with other competitor, which eventually
restrict other players from entering into the market and thus, increases dominance of
Eitri in the market. Hence due to this vertical integration of Eitri, it is at dominant
position in the identified market.
B. Eitri affected its competitors and consumers in its favour.
89. It is submitted that if an enterprise is able to affect its consumers in its favour,
113
then it should be considered dominant. It is submitted that Eitri has affected its
competitors and consumers in its favour firstly, dependence of consumers on Eitri [i];
and secondly, the creation of entry barriers by monopoly acquired through patent act
[ii].
[i] Dependence of consumers on Eitri
90. The dependence of consumers on an enterprise is an important factor to
114
determine dominant position. Court held that “due to the largest network of
processors and distributors chain along with a brand image with largest acceptance
with the customers, enabled enterprise to operate independently in the market and to
influence consumers in its favour”115 In the DLF case116, CCI took “dependence of
customers” as an important factor to attribute dominance.
91. In the present case, only Eitri provides 8G remote charging vehicles. Due to the
unavailability of this service, consumers are dependent on Eitri. Therefore, due to such
high market share and the dependence of consumers on Eitri, it is dominant in the
market.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
[ii] Creation of entry barriers by monopoly acquired through patent act

92. Patent, or any other IP can be considered as factor to determine dominant
117
position as it creates entry barriers. In Tetra Pack case the acquisition of patent by
the company was regarded as an indicator of dominance in the market as it creates
barriers for the other players. Further, §83 (c) and (f) of the Patent Act, 1970 says
that the condition imposed to safeguard patent must be reasonable and not reduce the
options available to consumers.118
93. In the present case, Eitri has patent over CSC technology. Due to this, Eitri is
the sole owner of this product and no other player can use this. Eitri has monopoly
over this product and hence Eitri is a dominant player in the market. Further, the
agreement between Eitri and Ultron is restricting Ultron to provide 8G frequency to
other players.
94. Ultron is restricting new entrant to enter into the market, as Ultron is the sole
provider of 8G frequency. Further, even if it is considered that the agreement was to
safeguard patent over CSC, the condition imposed were highly unreasonable. Thus,
Eitri is restricting new entrants by creating entry barriers.
95. Therefore, it is submitted that Eitri is at dominant position in the market as it
can operate independently of competitive forces. Further, that it can affect competitors
and consumers in its favour.
III. EITRI HAS ABUSED I TS DOMINANT POSITION
96. The Competition law allows an enterprise to be in a dominant position since
dominance per-se is not illicit, but bars it from abusing it. It is submitted that Eitri is
at dominant position and also has abused its dominant position as firstly, it has
imposed unfair condition in purchase of 8G service and denied access to essential
facility [A]; and secondly, it has denied market access by making exclusive
distribution agreement with Ultron [B].
A. Imposed unfair condition on purchase of 8G service and denied access to essential
facility
97. An enterprise at dominant position can abuse the same by imposing unfair and
discriminatory conditions on the other party. It is submitted that Eitri abused its
dominant position as firstly, it imposed unfair condition on Ultron [i]; and secondly,
Eitri restricted Ultron to provide essential facility and violated essential facility doctrine
[ii].
[i] Eitri imposed unfair condition on Ultron while purchase of service
98. In HMM Ltd v. DG, CCI observed that for holding a trade practice to be unfair, it
must cause loss or injury to the consumer. If a condition imposed by dominant firm is
causing loss to consumers or to other competitors, then it shall be considered as unfair
or discriminatory.
99. In the present case, Eitri imposed a condition on Ultron that it would not deal
with any other competitor in the market. Further, Ultron denied to deal with JV due to
the unfair condition imposed on it, which eventually caused injury to consumers. Thus,
it is submitted that, Eitri imposed unfair condition on Ultron which led to causing loss
to consumer and hence, Eitri can be said to have abused its dominant position.
[ii] Eitri restricted Ultron to provide essential facility and violated essential facility
doctrine
100. Essential facility doctrine means that the dominant player in the market who
owns some essential facility, has to share it with other players to maintain healthy
119
competition. “Essential facility” has been defined as “an infrastructure or resource
that cannot reasonably be duplicated, and without access to which competitors cannot
reasonably provide goods or services to their customers”120
-----------------------------------------------------------------------------------------------------------------------------------------------------------
101. According to Commission's Notice121, network frequencies are part of essential

122 123
facilities . Further in Arshiya Casen case , CCI held that essential facility doctrine
can be applied on case which involve technical aspect and where the usage of such
facility is necessary.
102. In the present case 6G, 7G, and 8G network frequencies are essential facility.
Ultron has monopoly over 8G technology and thus it is Ultron's duty to share this
facility. Due to the exclusive distribution agreement between Ultron and Eitri, Ultron
was not able to provide this essential facility. Thus, it is submitted condition imposed
by Eitri in the form of EDA is unfair and discriminatory in nature as it violates essential
facility doctrine.
B. Eitri denied market access by making exclusive distribution agreement with Ultron.
103. Any entry barrier created by the dominant firm through its direct or indirect
conduct, in any manner will be an abuse.124 When an enterprise is at a dominant
position it gets special responsibility to not create entry barriers and not to allow its
125
conduct to impair undistorted competition on the internal market.
126
104. In a recent JCB case CCI held the dominant firm was abusing its dominant
position as it was denying market access and was creating entry barriers. Similarly, in
the Shamsher Kataria case127 car manufacturers were abusing dominant position by
denying market access and violating essential facility doctrine.
105. An exclusive distribution agreement by a dominant enterprise is abusive as
there is denial of market access, irrespective of the positive impact of the agreement
128
on the competition. Any exclusionary practice including an exclusive distribution
agreement by a dominant enterprise shall be considered as abuse of dominance.129
106. It is submitted that, due to the exclusive distribution agreement between Eitri
and Ultron, many other competitors were unable to access market. JV also was unable
to access 8G frequency signals due to this exclusionary practice by Eitri. Thus, Eitri
has denied market access to other competitors and violated §4(2)(c) of the Act.
107. Conclusively, it is submitted before the Hon'ble SC that, the relevant market
in the present case is the electric automotive manufacturing market. Further, Eitri is
dominant in the identified market. Furthermore, due to imposing of unfair condition
while purchasing service from Ultron and denial of market access Eitri has abused its
dominant position in the relevant market.
ISSUE D: ODIN, HELA AND FURY HAVE VIOLATED SECTION 3 OF THE ACT
108. It is humbly submitted before the Hon'ble SC of Nidavellir that OHF have
violated Section 3 of the NAR as firstly There exists an anti-competitive agreement
[I]; secondly, Proviso under §3(3) does not apply [II]; and lastly OHF have caused
AAEC [III].
I. THERE EXISTS AN ANTI-COMPETITIVE AGREEMENT.
130
109. Agreement’ is a wide term inclusive of formal, written agreement as well as
informal ‘understanding’ and ‘arrangement.131 “Existence of an agreement is sine qua
132 133
non” in order to invoke s3 of the Act. Such existence can be inferred from the
intention and conduct134 of the parties. In consequence, it is submitted that there
exists an anti-competitive agreement as firstly, OHF has engaged in cartelisation [A];
and secondly, there is collusive behaviour [B].
A. OHF have engaged in cartelisation
110. A cartel attempts to limit and control production, sales, purchases, market. It
135
aims to monopolise markets with an objective not in public interest. Agreements
between cartel are “undocumented and well-hidden” therefore, the act widens the
scope of agreements under §3(3).136 The concurrence of parties to an agreement can
-----------------------------------------------------------------------------------------------------------------------------------------------------------
137
be gathered from their common motive and concerted conduct
111. Horizontal anti-agreements are commonly entered, formally or tacitly, to
control or determine purchase or sale prices in the market. 138 There is existence of
concerted behaviour along with an anti-competitive agreement if an enterprise directly
139
or indirectly determines purchase or sale prices under an agreement collusively.
140
112. The process of bidding includes pre bid process to post bid attitude.
Deciding or manipulating prices in the bidding process affects other credible
players.141 Further, bid rigging or fixing of bids acts as a barrier to new entrants in the
market, thus anticompetitive. Nothing can be more incriminating than parties
142
discussing every detail of the tenders to rig the bid.
113. In the present case, OHF has attempted to indirectly determine purchases or
143
sale prices by manipulating price, evidence for which has been obtained through
email correspondences and WhatsApp messages. 144 Further, OHF has limited or
controlled production and supply of raw materials by deciding tender bids for acquiring
145
the same, beyond that which pertained solely to the functioning of the JV As, OHF
has violated 3(3)(a), 3(3)(b) and 3(3)(d) of the Act, there has been cartelisation.
B. OHF Have engaged in collusive behaviour
114. An arrangement is said to be collusive when the parties act in a manner as a
146
result of direct or indirect contacts between them. The parties to an anti-
147
competitive agreement are not likely to leave any direct evidence indicating the
same therefore, most of the such agreements are likely to be an oral or informal
148 149
agreement. Hence, the proof will generally be based on circumstantial evidence.
115. The “balance of probabilities” and “liaison of intention” test is employed to
determine cartelisation which can be established through indirect or circumstantial
150 151
evidence. Preponderance of probabilities is used to meet the standard of proof.
152
116. Circumstantial evidences can be of two types such as [1] ‘Communication
evidence’153 such as WhatsApp messages, email correspondences, minutes of
154
meetings so on; [2] ‘Economic evidence’ which includes ‘conduct’ or ‘structural
evidence’. In consequence, it is submitted that OHF have cartelised because firstly
OHF have shared commercially sensitive information [i]; and lastly, OHF have indulged
in manipulation of price [ii].
[i] OHF have shared commercially sensitive information
117. A horizontal agreement leads to disclosure of strategic information, which
155
increases the likelihood of coordination among the parties to achieve costs
156
commonalities. The conduct of an enterprise should be driven by adapting to the
market conditions and competition. If such conduct is a result of exchange of
commercially sensitive information, then it will have a negative impact on market
157
condition and competition.
118. Among set of circumstantial evidences necessary to prove conspiracy among
158 159
parties evidence of communication is very important. Communication evidences
prove that parties met and communicated with each other to determine their present
or future behaviour.160 A high level of communications161 among competitors leads to
162
concerted action showing cartelisation.
119. Further, CCI held that “mere attendance in meetings where commercially
sensitive information like prices, is discussed, influences and takes away the
independent decisionmaking ability of participant competitors”. As a result, the
involved parties would not be able to act independently.
120. In the present case, there is information exchange on manufacture, R&D, and
-----------------------------------------------------------------------------------------------------------------------------------------------------------
163
distribution of between OHF, beyond the purview of the JV. OHF met on several
occasions to exchange commercially sensitive information such as, deciding tender
bids for acquiring raw material etc., beyond that which pertained solely to the
functioning of the JV.164
121. Thus, it is submitted that the sharing or exchange of commercially sensitive
information between OHF went beyond the scope and functionality of the JV, a reason
why such conduct is collusive and thus, anticompetitive.
[ii] OHF have indulged in price manipulation
122. Cartelisation among competitors has become a principal method of
165
cooperative functioning between the parties to control pricing in the market.
Concerted conduct as a result of price manipulation is used as strong structural or
economic evidence166 against cartels, while taking into account other market
167
conditions. Further, evidences adduced from WhatsApp chats, emails
correspondences are construed as direct evidences of involvement of parties in anti-
competitive acts.168
123. In the present case, OHF, under the garb of JV, have indulged in price
manipulation, the evidence for the same could be adduced from the WhatsApp
messages and email correspondences169. Therefore, on application of the rule of
170
“preponderance of probability” , it can be concluded with certainty that there was an
agreement as well as collusive conduct to cartelise between OHF under the garb of
JV.171 (120)
II. PROVISO UNDER SECTION 3 (3) DOES NOT APPLY
124. In a competitive economy, individual players in a particular market are
supposed to compete to satisfy consumers, not clandestinely cooperate to “distort
market forces and competition”.172 The plea that parties are specialising on a field
does not justify the wide-ranging cooperation between the parties which have
173
anticompetitive effects at the distribution level.
125. Analysis of formation must be separated from analysis of its conduct post-
174
formation, when evaluating anticompetitive concurrences. Further, apart from
formation and action within JV, it must be checked if the JV members advancing in
“dimensions outside it”.175 The members of JV must act independently outside the
scope of JV
176
126. In the present case, the agreement entered into by OHF is no doubt a JV.
Yet, OHF went beyond the scope and functionality of JV to cartelise and reduce
competition by sharing commercially sensitive information177 and manipulating
178
prices beyond the purview of JV. Further, such collusion could not enhance
efficiency. Therefore, JV defence could not be granted to OHF.
III. OHF HAS CAUSED AAEC
127. Once a cartel agreement is established under§3(3), AAEC, in terms of § 19
(3), is presumed.179 Agreements of bid rigging, fixation of prices, etc among the
180
competitors are to be considered per se illegal. CCI need not undertake any
subsequent enquiry in case, the party has violated §3(3). Further, JVs involved in “the
mere coordination of decisions on price, output, customers, territories are not a basis
for avoiding per se condemnation.181
182 183
128. The term AAEC is not defined in the Act. However, it proscribes not only
the conduct causing AAEC but also those which are likely to cause AAEC.184 Further,
when competitors continue meeting and discussing prices, it goes beyond doubt that
185
such conduct, at the minimum, is likely to cause AAEC. Therefore, a plea that the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
conduct is presently not causing AAEC, as a result of cartelising, is not tenable in

law.186 The burden would shift to such parties to rebut the presumption with
187
evidences.
129. In the present case, impugned conduct of OHF is covered under presumptive
rule of 3(3) of the Act and is wrong under §3(1) of the Act. It would require a very
high degree of rebuttal by the OHF to dislodge the statutory presumption by adducing
188
reasonable justification and pro-competitive effects of the agreement. Further, the
action of OHF violates § 3 (1) of the Act by causing AAEC as the negative effects
mentioned in §19 (3) of the Act outweigh the positive effect.
130. In conclusion, it is submitted that OHF have violated § 3(3) r/w § 3(1) as
there exists an anti-competitive agreement among them to cartelise. Further, the
circumstantial evidences prove the collusive behaviour among OHF. Such an
agreement with conduct leads to presumption of AAEC.
PRAYER
Whereof in the light of the issues raised, arguments advanced, and authorities
cited, it is most humbly prayed before the Hon'ble Supreme Court of Nidavellir that
this Hon'ble Court may be pleased to dismiss the petition and hold that:
I. THE JURISDICTION OF NFTC SUPERSEDES THAT OF TVA, AND NFTC HAS NOT ERRED I N
PASSING I TS FINAL ORDER WHEN THE MATTER WAS SUB JUDICE BEFORE THE TVA.
II. E ITRI HAS VIOLATED §3(4)(C) OF THE ACT.
III. E ITRI HAS VIOLATED §4 OF THE ACT.
IV. ODIN, HELA, AND FURY HAVE VIOLATED §3(3) OF THE ACT.
Also, pass any order in favour of the petitioners that it may deem fit in light of
equity, fairness, and good conscience.
For this act of kindness, the respondents shall duty-bound forever pray.
———
1
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-----------------------------------------------------------------------------------------------------------------------------------------------------------
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Clarifications, 33.
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81
Id.
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133
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143
144
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146
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147
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160
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161
supra note 163.
162
In re: Plywood Antitrust Litigation, 655 F.2d 627.
163
164
Id.
165
Builders Assn. of India v. Cement Manufacturers' Assn., 2016 SCC OnLine CCI 46; All India Tyre Dealers'
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166
Id.
167
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-----------------------------------------------------------------------------------------------------------------------------------------------------------
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168
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169
170
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171
Moot Proposition, supra note 176.
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Shashwat Awasthi & Utkarsh Khandelwal, Flashlights Order: Changing Dimensions in Trade Association
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173
Societa Italiana Vetro SpA, Fabbrica Pisana SpA and PPG Vernante Pennitalia SpA v. Commission of the EC,
1992 ECR 1403 (ECJ).
174
American Needle, Inc. v. National Football League, 560 US 183 (2010).
175
PolyGram Holding, Inc. v. FTC, 416 F.3d 29.
176
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177
Id. at ¶ 21.
178
Id.
179
Cartelisation in Industrial and Automotive Bearings v. ABC Bearings, S.M.C. No. 05 of 2017 (CCI).
180
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182
Competition Act, § 3. Id. at §2(1).
183
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240, (2004).
184
ABC Bearings case, supra note 184.
185
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05 of 2016.
186
Id.
187
188
In re: International Cylinder Pvt. Ltd., Appeal No. 21 of 2012 (COMPAT).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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Page 1 Saturday, February 24, 2024

13th NLUJ Antitrust Moot, 2022

Before the Supreme Court of Nidavellir

A. EITRI AND ULTRON ARE ENTERPRISES 6

[i] Eitri imposed unfair condition on Ultron while purchase of 25

30. OHF Odin, Hela, and Fury

of 2011 (CCI July 7, 2015)

(1918) (USSC), 124

9. Hart 0, Tirole J, Carlton D & Williamson OE, Vertical 12

NFTC [B]; and lastly, non-obstante clause applies. [C]

market.19 In consequence, it is humbly submitted that Eitri has violated §3(4)(c) of

53. An agreement improving the production of goods or provision of services, is

electric automobiles due to firstly, the physical characteristic of electric cars is

players and allow them to create barriers. Superior technology102 is considered an

[ii] Creation of entry barriers by monopoly acquired through patent act

101. According to Commission's Notice121, network frequencies are part of essential

conduct is presently not causing AAEC, as a result of cartelising, is not tenable in

visited Feb. 7, 2022).

http://www.indialawjournal.org/archives/volume (last visited Feb 18,2022)

https://www.oecd.org/ (last visited Feb. 5, 2017).

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