Best Team Memorial Appellant Nluj Antitrust Moot 09 2018 T Library Nalsarlawunivorg 20220207 184043 1 13

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9th NLUJ Antitrust Moot, 2018

Best Team Memorial - Appellant
In the National Company Law Appellate Tribunal of Bohemia

Appellate Jurisdiction U/S 53B, Bohemian Competition Act, 2002
Against the Order U/S 43A Dated 3 August 2017
Lutyen TV Pvt. Ltd. . . Appellant;
Versus
Competition Commission of Bohemia . . Respondent.
Against the Order in Case No. 1 & 2 of 2018
Versus
Sandy Home Store & RK & Competition Commission of Bohemia . . Respondent.
Against the Order in Case No. 3 of 2018
Versus
Sandy Home Store & Competition Commission of Bohemia . . Respondent.
Memorandum Filed on Behalf of Lutyen TV Pvt Ltd
Team Code: 017
TABLE OF CONTENTS
TABLE OF CONTENTS I
LIST OF ABBREVIATIONS V
INDEX OF AUTHORITIES VIII
STATEMENT OF JURISDICTION XV
STATEMENT OF FACTS XVI
ISSUES FOR CONSIDERATION XIX
SUMMARY OF ARGUMENTS XX
WRITTEN SUBMISSIONS 1
ISSUE I. LUTYEN HAS NOT VIOLATED THE GUN-JUMPING PROVISION U/S 43A. 1
A. THE NON-ABIDANCE OF THE LAID DOWN PROCEDURE VITIATED THE I NVESTIGATION 1
B. THE MARKET PURCHASES AND THE APA WERE TWO I NDEPENDENT TRANSACTIONS 2
C. ITEM 1 SCHEDULE 1 OF THE COMBINATION REGULATIONS, 2011 EXEMPTED LUTYEN FROM NOTIFYING THE MARKET PURCHASES 3
i. The market purchases were ‘solely an investment’. 4
D. THE MCA NOTIFICATION EXEMPTED LUTYEN FROM NOTIFYING THE ACQUISITION OF TOJO'S CASTING TECHNOLOGY DIVISION 6
i. The applicable law is the incumbent law when the cause of action arises. 7
ii. Additionally, the notification is clarificatory in nature and therefore, applicable retrospectively. 8
ISSUE II. LUTYEN HAS NOT ABUSED ITS DOMINANCE IN UHD TV MARKET TO INCREASE ITS SALE IN THE CASTING DEVICES 9
MARKET BY INDULGING IN THE ALLEGED TIE-IN ARRANGEMENT
A. LUTYEN IS NOT DOMINANT IN THE MARKET FOR MANUFACTURE AND SALE OF UHD TV IN BOHEMIA 9
i. Market share is not conclusive evidence to establish dominance. 10
ii. Size, importance, and commercial advantages of competitor. 10
iii. Market Structure. 11
B. ASSUMING ARGUENDO THAT LUTYEN IS DOMINANT, LUTYEN HAS NOT ABUSED IT TO I NCREASE ITS SALES IN THE CASTING DEVICES 11
MARKET U/S 4(2)(D) AND 4(2)(E)
C. LUTYEN HAS NOT I NDULGED IN A TIE-IN ARRANGEMENT UNDER SECTION 3(4)(A) 13
i. The conduct is not coercive towards consumers. 13
ii. The practice is a ‘competition on merits’ with sandy. 14
iii. It does not cause AAEC. 15
ISSUE III. LUTYEN HAS NOT VIOLATED THE CCB'S ORDER REGARDING CONDITIONAL APPROVAL 20
A. CCB'S POWER IS LIMITED TO STOPPING PRACTICES LIKELY TO CAUSE AAEC 20
ISSUE IV. THE RESALE PRICE MAINTENANCE IMPOSED BY LUTYEN DOES NOT VIOLATE THE PROVISIONS OF THE COMPETITION 21
ACT , 2002
A. THE RPM AGREEMENT DOES NOT CAUSE AAEC 22
i. The arrangement shall lead to an overall benefit to the consumers. 23
ii. RPM shall improve the distribution system, protect the existing distributors, and shall not lead to foreclosure of 24
competition.
iii. The RPM Arrangement is not dealer induced. 28
iv. No less restrictive alternative can achieve the intended efficiencies. 29
ISSUE V. SANDY HAS INDULGED IN A REFUSAL TO DEAL U/S 3(4)(D) 30
A. THE NCLAT HAS THE JURISDICTION TO HEAR THE APPEAL 30
i. The CCB has passed the said order u/s 27. 30
ii. The CCB has violated principles of natural justice by not granting a hearing to the appellant. 31
iii. The order is appealable to NCLAT. 32
B. SANDY'S CONDUCT AMOUNTS TO A REFUSAL TO DEAL 32
i. The freedom to choose trading partners is not absolute. 32
ii. Sandy has no economic rationale for the refusal. 33
iii. Sandy possesses sufficient market power in the distribution market. 34
iv. Sandy has the ulterior motive of leveraging its dominance from the distribution market into the UHD TV market. 35
PRAYER XXIII
LIST OF ABBREVIATIONS
Abbreviations Full Forms
AAEC Appreciable Adverse Effect on Competition
AIR All India Reporter
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All ER All England Reports

APA Asset Purchase Agreement
CCB Competition Commission of Bohemia
CCI Competition Commission of India
CFC Competition Federal Commission (Mexico)
CMA Competition Markets Authority
Co Company
COMPAT Competition Appellate Tribunal
D Conn District of Connecticut
DG Director General
ECR European Court Reports
ED Pa Eastern District of Pennsylvania
Edn Edition
EU European Union
F 2d Federal Reporter, Second Series
F 3d Federal Reporter, Third Series
F Supp Federal Supplement
FHD Full High Definition
HD High Definition
ICN International Competition Network
Inc Incorporated
Ltd Limited
Lutyen Lutyen TV Pvt. Ltd
MCA Ministry of Corporate Affairs
MRP Maximum Retail Price
MRTPC Monopolies and Restrictive Trade Practices Commission
NCLAT National Company Law Appellate Tribunal
No Number
OECD Organization for Economic Co-operation and Development
OFT Office of Fair Trading
OJ Official Journal
Pvt Private
Reg Regulation
RPM Resale Price Maintenance
RTD Refusal to Deal
RTP Restrictive Trade Practices
S Ct Supreme Court (US)
SCC Supreme Court Cases
SDNY Southern District of New York
Supp Supplement
TFEU Treaty on the Functioning of the European Union
TV Television
U/S Under Section
UHD Ultra High Definition
UKCLR UK Competition Law Reporter
UOI Union of India
US United States
V Versus
INDEX OF AUTHORITIES
INDIAN CASES:
SUPREME COURT
Abhiram Singh v. CD Commachen, (2017) 2 SCC 629 : AIR 2017 SC 401 7
CCI v. SAIL, (2010) 10 SCC 744 32
CIT v. Vatika Township Private Limited, (2015) 1 SCC 1 8
Excel Crop Care Ltd v. CCI, (2017) 8 SCC 47 6
N.C. Dhondial v. Union of India, (2004) 2 SCC 579 : AIR 2004 SC 1272 30
RS Raghunath v. State of Karnataka, (1992) 1 SCC 335 : AIR 1992 SC 81 31
Sanjay Industrial Corporation v. CCE, (2015) 14 SCC 639 6
Vijay v. State of Maharashtra, (2006) 6 SCC 286 8
COMPETITION APPELLATE TRIBUNAL
Thomas Cook (India) Limited v. CCI Appeal No 48/2014 3, 6
COMPETITION COMMISSION OF INDIA
Abbot/Mylan order u/s 31(1), Combination Registration No C-2014/08/202 4
Aditya-Birla notice u/s 6(2), Combination Registration No C-2012/07/69 3, 6
Alibaba/Jasper Infotech order u/s 31(1), Combination Registration No C-2015/08/301 4
Baring-Hexaware order u/s 31(1), Combination Registration No C-2013/09/130 2
CCL/CGL order u/s 43A, Combination Registration No C-2015/05/276 4
Deepa Narula v. Taneja Developers and Infrastructures Ltd Case No 22/2012 9
EMC order u/s 43A, Combination Registration No C-2015/07/293 2
Fast Track Call Cab Pvt Ltd v. ANI Technologies Pvt Ltd Case No 6 & 74/2015 10, 22
GS Mace details u/s 6(5), Form III Registration No C-L/2011/12/03 9
In Re Bharti Airtel Ltd v. Reliance Jio Infocomm Ltd Case No 3/2017 15, 17
ITC order u/s 43A, Combination Registration No C-2017/02/485 7, 8
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MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd Case No 13/2009 12
Piramal Enterprises order u/s 31(1), Combination Registration No C-2015/02/249 4
Shamsher Kataria v. Honda Siel Cars India Ltd Case No 3/2011 17
Shri Ghanshyam Dass Vij v. Bajaj Corp Ltd Case No 68/2013 22
Sumitomo Mitsui/Reliance Capital order u/s 31(1), Combination Registration No C-2014/12/235 4
Tech Mahindra order u/s 31(1), Combination Registration No C-2012/03/48 2
Thomas Cook order u/s 43A, Combination Registration No C-2014/02/153 2
Vedanta order u/s 31(1), Combination Registration No C-2012/03/45 2
Vikrant Bhagi v. Media Video Limited Case No 28/2013 9
MRTP COMMISSION
Hemraj Electronics v. Monica Electronics Pvt Ltd RTP Enquiry No 39/1985 34
US CASES:
Advanced Health-Care Services v. Radford Community Hospital, 910 F 2d 139 (4th Cir 1990) 35
Aspen Skiing Co v. Aspen Highlands Skiing Corp, 472 US 585 (1985) 32, 35
3M v. LePage's Inc, 124 S Ct 2932 (2004) 16
Brooke Group Ltd v. Brown & Williamson Tobacco Corp, 509 US 209 (1993) 14, 17
Brown Shoe Co v. US, 370 US 294 (1962) 9, 34
Cascade Health Solutions v. PeaceHealth, 502 F 3d 895, 918 (9th Cir 2007) 18
Eastman Kodak Co v. Image Technical Services Inc, 504 US 451 (1992) 32
FTC v. Beech-Nut Packing Co, 257 US 441 (1922) 33
GAF Corp v. Eastman Kodak Co, 519 F Supp 1203 (SDNY 1981) 13
Illinois Tool Works Inc v. Independent Ink Inc, 126 S Ct 1281 (2006) 10
Leegin Creative Leather Products Inc v. PSKS Inc, 551 US 877 (2007) 21, 27
Lorain Journal v. United States, 342 US 143 (1951) 32, 33
Northern Pacific Railway Company v. US, 356 US 1 (1958) 13
Ortho Diagnostics Systems Inc v. Abbott Labs Inc, 920 F Supp 455 (SDNY 1996) 16
Queen City Pizza v. Domino's Pizza, 124 F 3d 430 (3rd Cir 1997) 19
United States v. Colgate & Co, 250 US 300 (1919) 35
United States v. Cuisinarts Inc, 4 Trade Regulation Reporter 280 (D Conn 1980) 24
United States v. Griffith, 334 US 100 (1948) 35
US v. Grinnell Corp, 384 US 563 (1966) 9
US v. Jerrold Electric Corp, 187 F Supp 545 (ED Pa 1960) 19
US v. Jerrold Electric Corp, 365 US 567 (1961) 19
Verizon Communications Inc v. Law Offices of Curtis Trinko LLP, 540 US 398 (2004) 13
EU CASES:
Case 27/76 United Brands & Co v. Commission, 1978 ECR 207 10
Case 7/97 Oscar Bronner v. Mediaprint Zeitungs, (1998) 1 ECR 7791 35
Case 85/76 Hoffmann-La Roche v. Commission, 1979 ECR 461 10, 13
Case T-228/97 Irish Sugar v. Commission, (1999) 2 ECR 2969 14
Case T-65/89 BPB Industries PLC & British Gypsum Ltd v. Commission, (1993) 2 ECR 39 14
UK CASES:
Qualter Hall & Co v. Board of Trade, (1961) 3 All ER 389 30
MEXICAN CASES:
Casa Ley v. Yakult DE-29-2000 (CFC) 25
BOOKS:
Bryan Garner (ed), Black's Law Dictionary (8th edn, 2004) 8
Herbert Hovenkamp, The Antitrust Enterprise, Principle and Execution (1st edn, Harvard University Press 2008) 33
MA Utton, Market Dominance and Antitrust Policy (2nd edn, Edward Elgar Publishing 2003) 34
Phillip Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and their Application 24, 25, 26, 27, 28, 29,
(2nd edn, Aspen Publishers 2004) 34, 36
JOURNALS:
Daniel Crane, ‘Multiproduct Discounting: A Myth of Non-price Predation’ (2005) 72(1) The University of Chicago 13, 14
Law Review 27
Hans Hoffmann, ‘More pixels, More immersive television experience’ (2014) 7 Eastern Beijing University 11
Technical 8
Howard Marvel, ‘The Resale Price Maintenance Controversy: Beyond the Conventional Wisdom’ (1994) 63 27
Antitrust Law Journal 59
Janusz Ordover & Robert Willig, ‘An Economic Definition of Predation: Pricing and Product Innovation’ (1981) 18
91 Yale Law Journal 9
Lester Telser, ‘Why Should Manufacturers Want Fair Trade?’ (1960) 3 The Journal of Law and Economics 86 23
Marina Lao, ‘Resale Price Maintenance: The Internet Phenomenon and ‘Free Rider’ Issues’ (2010) 55 Antitrust 23, 25, 30
Bulletin 473
Mart Kneepkens, ‘Resale Price Maintenance: Economics Call for a More Balanced Approach’ (2007) 28 European 24
Competition Law Review 656
Thomas Lambert, ‘Evaluating Bundled Discounts’ (2005) 89 Minnesota Law Review 1688 17
Vishwanath Pingali, ‘Competition Law in India: Perspectives’ (2016) 41(2) The Journal for Decision Makers 168 21
Ward Bowman, ‘The Prerequisites and Effects of Resale Price Maintenance’ (1955) 22 The University of Chicago 29
Law Review 825
Yannis Bakos, ‘The Emerging Landscape for Retail E-Commerce’ (2001) 15(1) Journal of Economic Perspectives 25
69
ONLINE RESOURCES:
Brian Henry & Eugene Zelek, ‘Establishing and Maintaining an Effective Minimum Resale Price Policy: A Colgate How-To’ (7 May 2013) 26
https://www.freeborn.com/sites/default/files/white_papers/establishing_and_maintaining_an_effective_minimum_resale_price_policy_
-_a_colgate_how-to.pdf
Herbert Hovenkamp, ‘Tying Arrangements and Lawful Alternatives: Transaction Cost Considerations’ (20 February 2011) 19
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1763386
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Press Information Bureau, ‘Ministry of Corporate Affairs issues fresh notifications’ (30 March 2017) 7
http://pib.nic.in/newsite/PrintRelease.aspx?relid=160236
STATUTES, REGULATIONS & NOTIFICATIONS:
CCI (General) Regulations 2009 1
Combination Regulations 2011 1, 2, 3, 4, 5
The Competition Act 2002 1, 2, 4, 10, 11, 20, 21, 31
The Constitution of India 1950 20
REPORTS, RECOMMENDATIONS & GUIDELINES:
Antitrust Modernization Commission, ‘Report and Recommendations’ 2007 15, 16, 30
Competition and Markets Authority, ‘Mergers: Guidance on the CMA's Jurisdiction and Procedure’ 2014 5
European Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of the Treaty to 9, 15, 16, 17, 22
Exclusionary Abuses’ 2005
European Commission, ‘Guidelines on Vertical Restraints’ 2010 28, 29
European Commission, ‘White Paper: Towards more effective EU merger control’ 2014 6
International Competition Network, ‘ICN Unilateral Conduct Workbook’ 2015 14
OECD, ‘Policy Roundtables on Refusals to Deal’ 2007 29, 35
OECD, ‘Policy Roundtables on Resale Price Maintenance’ 2008 22, 23, 26, 28
STATEMENT OF JURISDICTION
In the present appeal under Section 53B of the Bohemian Competition Act, 2002 concerning the matter of Lutyen TV Pvt. Ltd v.
Competition Commission of Bohemia, the appellant humbly submits to the Jurisdiction of this Hon'ble Tribunal.
In the present appeal under Section 53B of the Bohemian Competition Act, 2002 concerning the matter of Lutyen TV Pvt. Ltd v. Sandy
Home Store & RK & Competition Commission of Bohemia, the appellant humbly submits to the Jurisdiction of this Hon'ble Tribunal.
In the present appeal under Section 53B of the Bohemian Competition Act, 2002 concerning the matter of Lutyen TV Pvt. Ltd v. Sandy
Home Store & Competition Commission of Bohemia, the appellant humbly submits to the Jurisdiction of this Hon'ble Tribunal.
STATEMENT OF FACTS
I. THE PARTIES
1. Lutyen TV Pvt. Ltd. (hereinafter Lutyen) is the largest television manufacturer in Bohemia, incorporated under the provisions of
Bohemian Companies Act, 1956 and specializing in the manufacture of UHD TVs.
2. Tojo, a company incorporated under the Bohemian Companies Act, 1956 and trading on the National Stock Exchange of Bohemia, was
previously the most popular manufacturer of CRT TVs but has witnessed declining profits during the past decade due to its failure to
keep up with technology. Tojo's casting device, the Tojo Stick, which was initially restricted to FHD TVs is now compatible with UHD TVs
and is its most profitable business since 2015.
3. Sandy Home Store (hereinafter Sandy) is Bohemia's largest distributor of home electronics, with showrooms across the territory of
Bohemia and is renowned for stocking all television brands and casting devices and selling them as per consumer preferences. It also
manufactures many products including UHD televisions. Its business model and one of the reasons for its success is that it gives
significant discounts to its end customers.
4. RK is a company specializing in the manufacture and sale of casting devices for UHD TVs with a 40% market share in the casting
devices market.
II. THE ACQUISITION
5. Tojo declined Lutyen's offer to purchase its casting technology division. However, determined to acquire the Tojo Stick business, Lutyen
acquired 4%, 5%, and 3% shareholdings in Tojo via successive market purchases over 2016-17.
6. Concerned with Tojo's future, its senior management entered into an Asset Purchase Agreement with Lutyen's CEO for the sale of Tojo's
casting technology division on 24 February 2017 in exchange for cash consideration payable to Tojo's shareholders and the return of
Lutyen's 12% shareholding in Tojo.
7. On 27 March 2017, the Ministry of Corporate Affairs (hereinafter MCA) published a notification in the Gazette of Bohemia regarding
certain changes in calculating the thresholds under Section 5 of the Competition Act.
8. On 10 June 2017, Lutyen issued a press release announcing the acquisition of Tojo's casting technology division.
III. THE GUN-JUMPING
9. CCB observed that Lutyen's acquisition of Tojo's casting technology division was notifiable under Section 5 of the Competition Act and
directed Lutyen TV to file a belated notification of the transaction with it, for a substantive review.
10. CCB in its review found that the transaction has the potential to cause an appreciable adverse effect on competition but approved the
transaction on the condition that there would be no exclusive arrangement between Lutyen's TVs and the Tojo Stick, and the latter
would remain compatible with the TVs of all other brands.
11. On 3 August 2017, CCB levied a penalty upon Lutyen for its failure to notify the acquisition of Tojo's casting technology division and
the earlier market purchases and consummating the transaction without its prior approval. Aggrieved, Lutyen filed an appeal before the
NCLAT challenging the CCB's order.
IV. POST-ACQUISITION PERIOD
12. To capitalize on the festival holidays, Lutyen proceeded to sell its Ultra HD TV and Tojo Stick as a package at the same price of the
television and mandated the distributors to sell it as a package as well.
13. On request of certain distributors, Lutyen included a clause in its distributorship agreement, which mandated that distributors only
provide end customers with a discount not exceeding 10% of MRP.
V. THE CONFLICT: JUDICIAL PROCEEDINGS
A. CASE NO 1 & 2 OF 2018
14. Due to the discount restrictions imposed by Lutyen, Sandy Home Store refused to stock its products and filed a complaint before the
CCB alleging a violation of the provisions of the Competition Act.
15. RK witnessed a major drop in its market shares, which in its view, was due to the Lutyen's bundling of its UHD TV with the Tojo Stick.
Aggrieved by what it viewed as anti-competitive behavior, RK filed a complaint before the CCB against Lutyen.
16. CCB found a prima facie violation and therefore, passed a common order for a detailed investigation under Section 26(1). The DG
found Lutyen guilty of indulging in resale price maintenance, tying in, and failure to comply with commitments based on which the
transaction was approved.
17. CCB passed an order imposing a penalty of BNR 53 Crore on Lutyen, in addition to a direction to abide by the commitments made
during the merger review process. Aggrieved, Lutyen filed an appeal before the NCLAT.
B. CASE NO. 3 OF 2018
18. Lutyen filed a complaint against Sandy for discriminating against Lutyen's products and refusing to stock them.
19. The DG in its investigation found that Sandy had specifically singled out Lutyen's products. However, the CCB disagreed with the DG's
findings and dismissed the complaint. Aggrieved, Lutyen filed an appeal before the NCLAT.
ISSUES FOR CONSIDERATION
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I. Whether Lutyen has violated the gun-jumping provisions u/s 43A, Bohemian Competition Act, 2002?
II. Whether Lutyen has abused its dominance in the UHD TV market to increase its sale in the casting devices market through a tie-in
arrangement?
III. Whether Lutyen has violated the CCB's order regarding the conditional approval of the acquisition?
IV. Whether Lutyen has violated Section 3(4)(e) of the Bohemian Competition Act, 2002 by practicing resale price maintenance?
V. Whether Sandy has violated Section 3(4)(d) of the Bohemian Competition Act, 2002 by indulging in a refusal to deal?
SUMMARY OF ARGUMENTS
I. LUTYEN HAS NOT VIOLATED THE GUN-JUMPING PROVISION U/S 43A.
The market purchases and the APA were independent transactions. The notification of market purchases was not required due to
exemption under Item 1 Schedule 1 since they were ‘solely an investment’ under Explanation 1 as they only conferred rights of ordinary
shareholders, with no power to appoint a director or participate in the management of the company. The APA was not notifiable since the
cause of action arose on the same day when the MCA issued the notification, which exempted the transaction. Further, the notification is also
retrospectively applicable since it is only a clarification and does not amend the substantive law.
II. LUTYEN HAS NOT ABUSED ITS DOMINANCE IN UHD TV MARKET TO INCREASE ITS SALE IN THE CASTING DEVICES MARKET BY INDULGING IN
AN ALLEGED TIE-IN ARRANGEMENT.
The appellant is not dominant in the market for sale and manufacture of UHD TVs since market shares do not conclusively indicate
dominance and it faces significant competitive constraints from Sandy, which also has the advantage of economies of scale and a wide
distribution network. The clause mandating the distributors to sell the Tojo Stick and the appellant's UHD TVs as a package does not give rise
to supplementary obligations by virtue of commercial usage, as the distribution channel for the TVs and the casting devices remains the
same. Further, the appellant's arrangement does not amount to a tie-in arrangement since it does not cause AAEC. It is an introductory offer
for a limited period to compete on merits with Sandy, which offers huge discounts on its UHD TVs during the festive period. Lutyen also
wants to introduce the Tojo Stick in the market. It has consumer benefits and does not lead to exclusionary harm through substantial
foreclosure of the market.
III. LUTYEN HAS NOT VIOLATED THE CCB'S ORDER REGARDING CONDITIONAL APPROVAL.
The CCB only has the power to stop anti-competitive practices and an intervention in the normal mode of business operation of companies
would violate the company's right to trade and will be against the spirit of the Act. Thus, the CCB's order restraining the appellant from an
exclusive arrangement meant such an arrangement, which shall have AAEC.
IV. THE RPM ARRANGEMENT IMPOSED BY LUTYEN DOES NOT VIOLATE THE PROVISIONS OF THE COMPETITION ACT , 2002.
The RPM arrangement imposed by Lutyen will not have any appreciable adverse effects on competition. Imposing RPM would encourage
the distributors to provide valuable and necessary services, which are essential for hi-tech products like Lutyen TV and Tojo Stick. Consumers
require certain services such as product specifications, demonstrations while purchasing technologically complex durable products and higher
prices are not anti-competitive if they reflect enhanced essential services. RPM would also enhance the inter-brand and intra-brand non-price
competition. It would also ensure that no dealer ‘free rides’ on the investment of the other dealers. It will not drive out existing competitors
from the market and instead, ensure that dealers achieve a minimum efficient sale by protecting them from low-cost dealers. There is no
equally efficient and less restrictive alternative to achieve the desired pro-competitive effects and RPM is an indispensable method.
V. SANDY HAS INDULGED IN A REFUSAL TO DEAL U/S 3(4)(D).
An order passed by CCB will come within the scope of Section 27 and not under Section 26(8), notwithstanding the contravention of
section 3 or section 4. The principles of natural justice stated in Section 36 stand violated because the CCB did not grant a hearing
opportunity to the appellant. Therefore, the NCLAT should allow the appeal under Section 53B as Section 53A provides that an order passed
under section 27 by the CCB is appealable. The respondent's conduct of refusing to deal with the plaintiff is not a decision based on sound
economic rationale but amounts to ‘arbitrary’ use of its market position with an ‘attempt’ to gain an unfair advantage in another market.
WRITTEN SUBMISSIONS
ISSUE I. LUTYEN HAS NOT VIOLATED THE GUN-JUMPING PROVISION U/S 43A.
¶1. The appellant humbly submits that the earlier market purchases were transactions separate from the Asset Purchase Agreement
(hereinafter APA) and exempted under Item 1, Schedule 1.1 Further, the acquisition of Tojo's casting technology division was not notifiable
and exempted under the MCA notification2 dated 27 March 2017.
A. THE NON-ABIDANCE OF THE LAID DOWN PROCEDURE VITIATED THE INVESTIGATION.
¶2. The CCB has the power to regulate its own procedure guided by the principles of natural justice.3 The use of the word ‘shall’ in section
364 makes the observance of the principles of natural justice mandatory and unavoidable at any stage.
¶3. The CCB has laid down a similar procedure for imposition of penalties under the Act.5 Regulation 486 mandates the issuance of a show-
cause notice by the CCB seeking explanation within 15 days as to why it should not impose the penalty on the contravening party; followed
by an oral hearing upon CCB's discretion.
¶4. In the present case, the CCB has directly imposed a penalty for gun-jumping without issuing a show cause notice or hearing the other
party7 , which is not only a transgression of the laid down procedure but also a gross violation of the principles of natural justice. Therefore,
the order dated 3 August 2017 should be set aside as it is bad in the eyes of law.
B. THE MARKET PURCHASES AND THE APA WERE TWO INDEPENDENT TRANSACTIONS.
¶5. Where the acquisition takes place in a number of inter-connected steps, the party shall file a single notice covering all these steps8 of
the composite combination and consummation of any such step without prior approval of the commission would be a violation of gun-
jumping provisions9 and invite a penalty under the Act.10
¶6. The mutual dependence or inter-connection of a series of transactions depends on a number of factors like the subject of the
transaction, the time gap between the said transactions, the market involved, and whether it would be practically reasonable to view the
transactions separately, which require evaluation on the facts and circumstances of each case.11
¶7. Further, CCI has held open market purchases as separate from the combination in a number of cases like Aditya-Birla12 and Baring-
Hexaware13 . In the latter, the party had filed a notice with respect to one transaction but failed to notify the open market purchase of 3.24%
equity share capital; and the CCI did not consider the open market purchase as a part of the composite combination. Even the erstwhile
COMPAT had held open market purchases to be independent of a composite combination, even when the transactions and the purchases had
taken place simultaneously, between the same parties.14
¶8. In the present case, the open market purchases were made a year before the execution of the APA; the subject matter of two
transactions was different since the market purchases pertained to Tojo but the APA was executed for the transfer of assets of only the
casting technology division.15 Even while making the purchases, Lutyen's board could not have reasonably foreseen the execution of the APA
because Tojo's shareholders had proposed it.16 The mere execution of APA in close proximity to the open market purchases is not sufficient to
deny the benefit of exemption to the appellant.17
C. ITEM 1 SCHEDULE 1 OF THE COMBINATION REGULATIONS, 2011 EXEMPTED LUTYEN FROM NOTIFYING THE MARKET PURCHASES.
¶9. An acquisition of shares, which does not entitle the acquirer to hold more than 25% of the total shares and does not lead to the
acquisition of control over the target enterprise, is exempted from notification18 , provided that it is ‘solely an investment’ or ‘in the ordinary
course of business’.19 Further, an acquisition of less than 10% of total shares is ‘solely an investment’ subject to certain conditions, provided
the total shares held by the acquirer do not exceed 25%.20 The market purchases were individual acquisitions of 4%, 5% and 3% shares in
Tojo and therefore, they qualify for the exemption under Item 1 Schedule 1.
i. THE MARKET PURCHASES WERE ‘SOLELY AN INVESTMENT’.
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¶10. The term ‘solely an investment’ involves an element of strategic intent. This intent can be characterized through a number of factors,
which include but are not limited to the existence of an understanding/alliance21 , press release labeling the acquisition as strategic22 or the
capacity of acquirer as a competitor of the target23 . However, a situation where the acquirer and the target are competitors or engage in the
manufacture of similar products does not necessarily raise competition concerns if the products do not overlap; or even if they do, the
substantial market share of the overlapping products in inconsequential (around 10% in Abbot/Mylan).24
¶11. Further, the transaction at hand should be the only relevant factor for consideration while determining the intent to acquire control or
participate in affairs or management.25 Any far-fetched conclusion evaluating immaterial information based solely on circumstantial evidence
would cradle extraneous results, thereby making the exemption obsolete.
¶12. However, Tojo, a manufacturer of CRT TVs, had failed to keep up with the advent of technology and was no longer Lutyen's
competitor in the market for sale and manufacture of Ultra High Definition Televisions (hereinafter UHD TVs); thus, the market purchases
were ‘solely an investment’ in Tojo's casting technology division which was growing rapidly and turning in profits.26 Further, the market
purchases did not lead to the acquisition of any control over Tojo's business. The purchases entitled Lutyen to exercise only those rights as
available to ordinary shareholders, without the right or intention to nominate a director to Tojo's board and thus, without any intention of
participating in Tojo's affairs and management, thereby it fulfills the requisite criteria and qualifies for the exemption.27
¶13. Even in the UK, the Competition and Markets Authority (CMA) has the jurisdiction to only investigate material influences or control in
cases where the acquisition of minority shareholding in competitors or vertically related company meets the threshold of 15%.28 The EU also
affirms this view by stating that only the transactions having “competitively significant links” are notifiable and the jurisdictional threshold is
the same at 15%.29
¶14. The parties have to notify the Commission within 30 days of the trigger event (an agreement or any other document executed for the
transaction purposes) under section 6(2) of the Act. However, the trigger document should ensure sufficient degree of finality in the
transaction.30 This finality is absent because no trigger document has been executed.
D. THE MCA NOTIFICATION EXEMPTED LUTYEN FROM NOTIFYING THE ACQUISITION OF TOJO'S CASTING TECHNOLOGY DIVISION.
¶15. The appellant humbly submits that it firmly believed that the turnover and assets used as thresholds for exemption even under the
previous notification were those relevant to the portion of the enterprise undergoing acquisition. The basis for this belief was a purely
technical mistake, and the appellant did not act deliberately in defiance of the law, which the tribunal should not consider as a violation of
gun-jumping provisions and therefore, it should quash the penalty.31 Lutyen consummated the transaction without the approval of the
Commission because it availed the applicable benefit under the MCA notification and the consummation of acquisition only happened after
the publication of notification.32
¶16. Further, the Supreme Court of India, relying on Abhiram Singh33 , had held the word ‘turnover’ to mean ‘the relevant turnover’ under
section 27 of the Act and stated, “if two interpretations are possible, the one that leans in favour of infringer has to be adopted and that the
interpretation should not bring about inequitable results”.34 Further, there had been no order of the Commission that clarified the
consideration of entire enterprise's assets and turnover even in the case of mere acquisition of a portion/division of an enterprise.35
i. THE APPLICABLE LAW IS THE INCUMBENT LAW WHEN THE CAUSE OF ACTION ARISES.
¶17. The cause of action for the proceedings under section 43A arises only when the acquiring entity has failed to notify the Commission
within 30 days of executing the agreement related to the acquisition under section 6(2). In the present case, the appellant was obligated to
notify the execution of APA within 30 days from 24 February i.e. until 26 March. Therefore, the cause of action arises on 27 March as laid
down by the CCI.36 The applicable law to the proceedings, therefore, should be the incumbent law in existence and not the previous law,
which is obsolete in the given circumstances since it is a general proposition of law that Courts are actors that play the lawmakers’ script.
ii. ADDITIONALLY, THE NOTIFICATION IS CLARIFICATORY IN NATURE AND THEREFORE, APPLICABLE RETROSPECTIVELY.
¶18. A legislation that amends certain rights or obligations should be prospective in nature unless it clarifies the existing position or
explains a former mistake or omission on part of the lawmakers.37 In the press release following the notification, the MCA had stated that the
notification provided “clarity on the methodology to be adopted for calculating the relevant assets and turnover”38 . Therefore, the notification
should be operative retrospectively. The argument that the notification amends the substantive law and hence cannot be applied
retrospectively, as accepted in ITC39 , does not stand because the title of the notification uses the word ‘methodology’, which means, “broad
principles used to guide a user to specific ‘procedures’ within the discipline”40 .
¶19. The notification also amends the applicability of penal obligations and hence, is retrospective in nature.41 Any amendment to such a
statute should confer a benefit on the affected public, not the concerned department.42 Further, the preamble of the Act provides that the
aim of the legislation is to aid the economic development of the country and to ensure freedom of trade to the market players by effectively
curbing practices having appreciable adverse effects on competition (hereinafter AAEC). Therefore, any penalty for a practice no longer
regarded anti-competitive would be against the spirit of the Act.43
ISSUE II. LUTYEN HAS NOT ABUSED ITS DOMINANCE IN UHD TV MARKET TO INCREASE ITS SALE IN THE CASTING DEVICES MARKET BY
INDULGING IN THE ALLEGED TIE-IN ARRANGEMENT.
¶20. The appellant humbly submits that it was not dominant in the market for the manufacture and sale of UHD TV and therefore, the
question of its abuse is impertinent. Further, the arrangement of selling the UHD TV and Tojo Stick as a package does not amount to a tie-in
arrangement as the practice neither causes nor is likely to cause AAEC.
A. LUTYEN IS NOT DOMINANT IN THE MARKET FOR MANUFACTURE AND SALE OF UHD TV IN BOHEMIA.
¶21. In order to determine whether an enterprise is abusing its dominant position or not, it is necessary to first determine the relevant
market in which that particular enterprise was alleged to be in a dominant position.44 The second issue would be whether the enterprise
abused its dominant position in any manner in that relevant market in terms of Section 4 of the Act.45 In the present scenario, the CCB has
identified the upstream market as the ‘manufacture and sale of UHD TV’ and downstream market as the ‘manufacture and sale of casting
devices’.46
¶22. In a tying claim, it is essential to prove that the enterprise enjoys a dominant position in the market for the tying product.47 The
Commission should consider the various factors in section 19 while determining whether an enterprise enjoys a dominant position in the
relevant market.
i. MARKET SHARE IS NOT CONCLUSIVE EVIDENCE TO ESTABLISH DOMINANCE.
¶23. Market share figures alone cannot be the sole criterion for determination of market power or dominance.48 This is not in the line with
the relevant statutes and laws on the said issue.49 Consequently, though market share is a major factor, it cannot be the sole yardstick and a
number of other factors would play a pivotal role in the determination of market power or dominance.50 Therefore, the CCB has erred while
concluding that Lutyen is dominant since it has failed to consider other factors like the presence of an effective competitor in the market.
ii. SIZE, IMPORTANCE, AND COMMERCIAL ADVANTAGES OF COMPETITOR.
¶24. The presence of an efficient competitor in the market, who is in a better financial or networking position provides sufficient
competitive constraints to the biggest player in the market.51 Sandy is the second largest manufacturer of the UHD TV and the largest
distributor of home electronics in Bohemia.52 Further, Sandy enjoys economies of scale and due to its vertical integration in the manufacturer
and distributor market, it easily provides high discounts on its home brands and thus, exercises competitive constraints on the other
manufacturers in the market.
iii. MARKET STRUCTURE.
¶25. The market is also characterized by evolving technology and is in a dynamic stage and therefore, interference by the CCB would not
be justified.53 China started the commercial sale of the first UHD TV designed for households in 201454 and the technology became a
household name only around 2016. Further, the UHD technology is still to capture the TV market from the FHD technology and it faces tough
competition from 4k and 8k TV variants, yet to become a substantial market in itself. This continuous dynamism and innovation is an
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inherent feature of the industry and the failure to keep up might result in loss of profits, similar to Tojo.
B. ASSUMING ARGUENDO THAT LUTYEN IS DOMINANT, LUTYEN HAS NOT ABUSED IT TO INCREASE ITS SALES IN THE CASTING DEVICES MARKET
U/S 4(2)(D) AND 4(2)(E).
¶26. Section 4(2)(d) is applicable where a dominant enterprise “makes conclusion of contracts subject to acceptance by other parties of
supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts”.55
Section 4(2)(e) recognizes the fact that an enterprise may use its position of strength in one market to leverage its position and gain an
unfair advantage in the other market.56 The Competition Act, 2002 prohibits the abuse of dominant position57 rather than the dominance
itself. RK has alleged that through the violation of section 4(2)(d), the appellant has violated 4(2)(e). The appellant submits that if the
allegations under the former do not sustain, those under the latter would also collapse.
¶27. If the contract does not pertain to supplementary obligations according to commercial usage, then it does not amount to abuse. In
the present case, the UHD TVs and the casting devices are sold through the same distribution network58 ; and therefore, according to the
commercial usage, the distributors usually sell the UHD TVs together with casting devices to the consumer. As such, the contract of selling
the UHD TV with Tojo Stick is not a supplementary obligation as per the commercial usage.
¶28. The package was a limited period offer to be only availed during the special festive season. This was competition on merits in
response to Sandy's high discounts during the festive period. It ensured the quality of product and better after-sales services, and hence the
pro-competitive effects outweigh the anti-competitive effects, if any. Further, the Tojo Stick and other casting devices are also compatible
with FHD TVs and the arrangement covered only Lutyen's UHD TVs, which forms a relatively small portion of the market for the sale of
casting devices to cause substantial foreclosure. Therefore, Lutyen has not abused its dominant position by entering into contracts that give
rise to supplementary obligations under 4(2)(d) and therefore, it could not have abused their dominance in one market to protect another
under section 4(2)(e).
C. LUTYEN HAS NOT INDULGED IN A TIE-IN ARRANGEMENT UNDER SECTION 3(4)(A).
¶29. The appellant submits that Lutyen is selling the UHD TV and casting devices together for a limited time during the special festive
season. It is an introductory offer by a new entrant in the market for manufacture and sale of casting devices. Further, this practice is
incapable of any exclusionary effects in the market for manufacture and sales of casting devices and instead, has several pro-competitive
benefits.
i. THE CONDUCT IS NOT COERCIVE TOWARDS CONSUMERS.
¶30. “As long as success in the marketplace is not based on any form of coercion, the merits and demerits of a monopolist's new products
will not be subject to judicial scrutiny.”59 There is an assumption of tying on part of an enterprise with substantial market power over the
tying product if it does not allow the customers to purchase the tying product without the tied product.60 The idea that ‘inducement’ or
‘coercion’ i.e. forcing the customers to buy things they do not want, is a well-regarded exception to the economic principle that lower pricing
is equivalent to consumer welfare.61
¶31. However, another important factor for consideration is that consumer preferences for quality vary with the price. Therefore, if the
difference between the prices of two products were greater than the quality differential between the products, the consumer preference
would change.62 Further, if the quality differential between the Tojo Stick and the most superior casting device overpowers the price
difference, the end-customers can still buy another casting device along with the package. This option is still possible at the same price they
would have shelled out for Lutyen's UHD TV together with another casting device in the non-festive period and without any loss since the
package is available at the discounted price equivalent to that of Lutyen's UHD TV alone.63
ii. THE PRACTICE IS A ‘COMPETITION ON MERITS’ WITH SANDY.
¶1. In the US, the general approach of the Courts is not to meddle with vigorous price competition64 since this is the ultimate goal that
antitrust aims to achieve and any imprecision in the definition of pricing offenses would chill the competition levels in the market and
ultimately, harm the consumer welfare.65 If a practice were in response to competition in a market where competitors are offering several
separate products used together as a system, it would only foster healthy competition on merits leading to consumer welfare.66 Further,
above-cost discounts could also be a result of the efficient structure that would constitute ‘competition on merits’.67
¶2. During the festive period, Sandy, Lutyen's main competitor in the UHD TV market that enjoyed economies of scale, offered discounts
as high as 20% on its UHD TVs.68 Lutyen could not compete on that price and therefore, started offering both its products as a package at a
bundled discount for the festive period. The price of a casting device is not more than 10% of a UHD TV. In such conditions, offering a
package of casting device and a UHD TV together at a price of a UHD TV alone would only amount to around 10% discount on the UHD TV.
Therefore, Lutyen offered both the products as a bundle in such a capacity that it would be a good way to advertise its newly acquired casting
device through an introductory offer, in addition to competing with Sandy for sales during the festive season.
iii. IT DOES NOT CAUSE AAEC.
¶32. For a tying claim to be successful, the arrangement should cause or be likely to cause AAEC. Section 19(3) lays down the factors to
determine whether a practice would cause AAEC or not. The absence of well-defined tests concerning tying often leads to neutralization of
pro-competitive behavior and thus, causes harm to consumer welfare.69
a. IT DOES NOT CAUSE FORECLOSURE OF COMPETITION IN THE MARKET.
¶33. The appellant humbly submits that the sale of UHD TV and Tojo Stick as a package was an introductory offer, which could only be
availed in the limited period during the festive season. The pricing cannot be said to be anti-competitive just because it means foregoing
profits or running on losses in a short run. It could also be an introductory offer to enter a new market through the lucrative discounted
offering of the product to make the customers familiar with it, instead of spending on advertisements.70 Further, it is a very common practice
to introduce a new product in the market with established product as a discounted bundle.71
¶34. It would not be anti-competitive for a new entrant to incentivize customers with lucrative deals as such limited period offers are
marketing strategies to establish identity and therefore, cannot be subject to investigation under the Act.72 If a big firm offers an above-cost
discount that a small firm cannot match, it will only have foreclosure effect, if the offer stands for a substantial period.73 In the present case,
Lutyen sold the UHD TV and the Tojo Stick at the price of UHD TV alone, which would be equivalent to offering around 10% discount on the
UHD TV alone as shown in [II. C. ii].
¶35. The two-pronged test to determine foreclosure effect includes finding whether the tying takes place in such a way that competitors
cannot compete for the business of the dominant company and secondly, whether these customers add to up to a large part of the tied
product market.74 In the present case, the casting devices are also compatible with FHD TVs and the arrangement covered only Lutyen's UHD
TVs, which forms a relatively small portion (less than 1/4th, approximately) of the market for the sale of casting devices to cause substantial
foreclosure.
¶36. Further, the casting devices manufacturers could still compete with the Tojo Stick by offering a collaborative bundle with a UHD TV
manufacturer.75 Such a practice is neither rare nor impractical and several examples of collaborative bundles include Olympus digital voice
recorder packaged with Duracell batteries, Maybelline mascara packaged with Bausch and Laumb contact-lens cleaner, and Suave-for-men
body wash packaged with Gillette razor.76
b. IT DOES NOT DRIVE OUT THE EXISTING COMPETITORS.
¶37. In Bharti Airtel77 , the Commission had stated that offering of free services for a limited period could not be anti-competitive unless
infected with an anti-competitive intention of excluding rivals and further observed that it was not the case since the relevant market had a
number of established players. The intent of excluding rivals is reflective of the dominant firm's hopes to recoup the profits after the
exclusion. Therefore, in a tying claim, the plaintiff must prove that the arrangement is likely to force the plaintiff to exit the market such that
the defendant is able to recoup its profits through exorbitant pricing after the said period.78
¶38. The anti-competitive practice is likely to exclude efficient and established rivals only if it is in effect for a long period. Therefore, the
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Commission should look beyond short-term effects (both anti-competitive and pro-competitive) and only condemn an efficient short-term
practice, if it has lasting anti-competitive effects.79 The discount-attribution test does not work here for two reasons: firstly, it pre-supposes
that the enterprise has a monopoly over the upstream market and secondly, it sweeps even effective above-cost discounts within its ambit.80
The effective time for which the alleged anti-competitive practice has been going on is an important factor while evaluating the exclusionary
or foreclosure effects of the practice.81
¶39. However, if this exclusion is not possible due to the anti-competitive pricing lasting only a short period of time, there would be no
recoupment period and therefore, this entire scheme of offer would be based on a different intention82 , which in the present case is
successfully introducing the Tojo Stick in the market. The Tojo Stick required an advertising campaign since even after the extension of its
compatibility to the UHD TVs on the acquisition of a Bohemian start-up somewhere around December 2015, there had not been any
significant change in the sales figures.83 Therefore, Lutyen introduced the package deal during the festive season to acquaint the public with
the fact of Tojo Stick's compatibility with the UHD TVs.
c. IT LEADS TO CONSUMER BENEFITS.
¶40. When buyers choose an inferior version of the tied product, the working of the product together with the tying product may be
affected. This might lead to a situation where if a large number of customers choose the inferior version of the tied product and due to
compatibility issues, its quality with the upstream product is affected, it might lead to a widespread bad reputation for the upstream
product.84 This situation would be even worse when the market for the upstream product is quite competitive as in our case. Therefore, the
use of tying arrangements is justified if the primary motive is quality protection.85
¶41. The situation becomes even more complex when the manufacturer sells the product to the distributor who passes it on to the final
consumer. The distributor may sell an inferior version of the tied product with the tying product through which he makes more profit, even if
it impairs the manufacturer's goodwill with the dissatisfied consumer.
¶42. Lutyen could only ensure that the benefits of the package deal as an introductory advertisement reach to the end-customers by
mandating the distributors to sell Lutyen UHD TVs and the Tojo Stick together. Otherwise, the independent distributors would have sold the
two products individually for more profit and the benefit would never trickle down to the end-customer. Further, since this was a promotional
offer, Lutyen wanted to keep a check on product quality and after-sales services like product installation, since the quality of working of the
two products together could make or break Tojo Stick's reputation in the market.
ISSUE III. LUTYEN HAS NOT VIOLATED THE CCB'S ORDER REGARDING CONDITIONAL APPROVAL.
¶43. The appellant humbly submits that it has not violated the CCB's order for conditional approval as alleged by RK. The CCB had
granted approval to the combination under section 31(7) of the Act, made contingent upon conditions that the appellant would not indulge in
an exclusive arrangement between its televisions and Tojo Stick and that the Tojo Stick would remain compatible with other brands’ TVs.86
¶44. The Tojo Stick is still compatible with other brands’ TVs and there is no allegation in this respect.87 The contentious issue is whether
the appellant has indulged in an exclusive arrangement through an alleged tie-in, which is not the case here since the arrangement does not
cause AAEC.
A. CCB'S POWER IS LIMITED TO STOPPING PRACTICES LIKELY TO CAUSE AAEC.
¶45. The CCB's power with regard to Combination Regulations is limited to restricting combinations that cause or are likely to cause AAEC.
Even in the present case, the CCB forbade the practice of exclusive arrangement only when it had the potential to cause AAEC.88
¶46. If CCB restricts ordinary business tactics and interferes in profitable strategies implemented by a market player, it would infringe the
player's freedom to trade, which is against the intention of the Act89 as well as a violation of the fundamental right to trade90 . Further, the
merger control by the CCB is more ‘regulatory’ than ‘prohibitive’, and as such cannot disallow practices not covered under the Act.91
Therefore, while approving the combination contingent on certain commitments92 , the condition is a valid exercise of CCB's power only if the
violation of the commitments would cause AAEC93 , which is not the case here as proved in [II. C. iii].
ISSUE IV. THE RESALE PRICE MAINTENANCE IMPOSED BY LUTYEN DOES NOT VIOLATE THE PROVISIONS OF THE COMPETITION ACT , 2002.
¶47. The appellant humbly submits that the resale price maintenance (hereinafter RPM) clause included by Lutyen in its distributorship
agreement has not caused and is not likely to cause any appreciable adverse effects to competition in Bohemia and therefore, does not
violate the provisions of the Act.
¶48. The definition of RPM under Explanation (e) to Section 3(4) of the Act94 includes “any agreement to sell goods on condition that the
prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower
than those prices may be charged”.
¶49. In Leegin95 , it was established that Vertical Price Restraints are not a per se violation and should be judged under the rule of reason
which requires the fact finder to weigh all the circumstances.
A. THE RPM AGREEMENT DOES NOT CAUSE AAEC.
¶50. In Bajaj96 , it was established that in order to determine if the agreements entered between a manufacturer and its distributors are in
the nature of RPM under section 3(4)(e) of the Act, the factors listed in 19(3) need to be satisfied in order to prove AAEC is caused in the
market. It is pertinent to note that clauses (a)- (c) of section 19(3) deal with factors which restrict the competitive process in the markets
where the agreements operate (negative factors) while clauses (d)-(f) deal with factors which enhance the efficiency of the distribution
process and contribute to consumer welfare (positive factors).
¶51. The criteria set out to gauge the possible anti-competitive effects includes the presence of significant unilateral upstream market
power.97 The appellant submits that it does not possess significant market power that would enable the arrangement to cause AAEC, as
market shares cannot be the sole criterion to determine market power.98 Sandy is acting as an efficient competitor in the market as it is in a
better financial and networking position to provide sufficient competitive constraints to the biggest player in the market.99
¶52. In the present case, the pro-competitive effects of RPM clearly outweigh any anti-competitive effects that may arise because of this
practice.
i. THE ARRANGEMENT SHALL LEAD TO AN OVERALL BENEFIT TO THE CONSUMERS.
¶53. The appellant humbly submits that the arrangement results in the accrual of benefits to the customers as well as a highly efficient
and highly improved distribution system.
¶54. RPM emphasizes its use as a mechanism to encourage retailers to provide valuable services to consumers.100 Examples of such
services include the provision of information about product attributes, product demonstrations, post-sale support101 , which are essential for hi
-tech products like UHD TVs and Tojo Stick. If a product is highly differentiated or technologically complex, consumers may require
information about product attributes before making a decision regarding the purchase.102
¶55. Products unfamiliar to the mass of consumers require certain special services and if the manufacturer wishes the special services of
retailers to promote the product, he may set a floor to the retail price of this new product.103 In the present case, the products in question are
technical and relatively unfamiliar with the consumer. Higher prices would not be anti-competitive if they reflect enhanced services to
consumers leading to greater demand for the good.104 Consumers need to be shown the capabilities of a complex hi-tech or relatively new
products like UHD TV or a casting device for it to sell effectively and this requirement is met through expensive and detailed dealer-provided
demonstrations.105
¶56. Any benefit for the new customer must be weighed against the impact on the welfare of the ‘non-marginal’ consumer.106 In the
present case, Lutyen's UHD TV and the Tojo Stick, being a hi-tech, complicated, and relatively new product shall not have a significant
number of non-marginal consumers and hence, it shall not affect the overall consumer welfare.
¶57. RPM shall also reduce a dealer's ability to profit by cutting prices in order to lure patronage and then disappointing consumers with
poor quality. Customers purchasing a product infrequently may not prefer a dealer who does not prepare the product or instruct the buyer in
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the manner required for its best functioning.107

ii. RPM SHALL IMPROVE THE DISTRIBUTION SYSTEM, PROTECT THE EXISTING DISTRIBUTORS, AND SHALL NOT LEAD TO FORECLOSURE OF
COMPETITION.
¶58. RPM can boost both inter-brand and intra-brand non-price competition. By preventing competition based on price among the
retailers, RPM enhances their ability to engage in other types of competition i.e. they will have to find other ways to attract customers if they
are going to remain competitive with other dealers.108 In Yakult109 , Yakult successfully argued that its pricing policy impedes supermarkets to
free ride on the promotional efforts of independent sellers, which would undermine their incentives to spend resources on promotion and,
finally, could cause their disappearance. Therefore, intra-brand price competition was restricted to induce non-price competition for better
product quality.110
¶59. RPM may also help in maintaining product quality and brand image, which are all legitimate objectives. The obvious way to guard
against poor quality shall be RPM as it could provide each dealer with enough margins to finance better quality.111
¶60. The RPM does not drive out existing competitors from the market; instead, it promotes non-price competition among the
competitors. Heavy Discounts are not the only advantage that the online retailers enjoy. They possess other significant advantages such as
substantially low search costs; i.e consumers can effortlessly access and filter content to find offerings that best match their needs and
desires without incurring any transaction costs.112 Another benefit that the online retailers enjoy is more expansive product offerings made
available to consumers. Online stores can carry much larger selections than brick-and-mortar stores.113
¶61. Low-cost dealers might deprive other dealers of the sales necessary to achieve a minimum efficient sale.114 In the absence of RPM,
the largest and the most aggressive retailers will drive smaller merchants out of business. Surviving concentrated retailer may behave like a
monopoly, which would lead to consumer detriment. 115
¶62. The RPM arrangement shall also level the distributor playing field to avoid any destructive channel conflict116 , which may prove to be
an impediment to a robust dealer network. Excessive intra-brand price competition may lead distributors to abandon providing consumers
with value-added services, thereby lowering overall demand.117
¶63. RPM can also increase inter-brand competition by encouraging the retailer to provide services that they ordinarily will not, even in the
absence of free riding. It may be difficult and inefficient for a manufacturer to make and enforce a contract with a retailer specifying the
different services the retailer must perform. Offering the retailer a guaranteed margin and threatening termination if it does not live up to
expectations may be the most efficient way to expand the manufacturer's market share by inducing the retailer's performance and allowing it
to use its own initiative and experience in providing valuable services.118
a. RPM IS NECESSARY TO COUNTER THE MENACE OF FREE RIDING.
¶64. Absent vertical price restraints, retail services that enhance inter-brand competition might be underprovided because discounting
retailers can free ride on retailers who furnish services and then capture some of the demand those services generate.119 There is a need to
maintain prices to correct a serious defect in the marketplace: the inability of a manufacturer to protect dealers who provide presale services
for the manufacturer's products from discounters who unfairly pilfer the customers that such services generate.120
¶65. The most obvious dealer service on which free riding is possible is a pre-sale demonstration for relatively expensive goods. Examples
include home appliances such as television. The demonstration can include not only mechanical instruction but also information about
construction and relevant comparisons.121 The appellant humbly submits that where a distributor, who will be the first to sell an existing
brand on a new market, thereby ensuring a genuine entry in the relevant market, may have to commit substantial investments to develop
the new market where there was previously no demand for that type of product from that producer.122
¶66. This possibility tends to deter retailers from incurring costs to provide the services, potentially resulting in an inefficiently low level of
provision of these services. RPM solves the free-riding problem by making retail prices uniform so that customers no longer have a reason to
surf at one store and buy in another. With no possibility of price competition, retailers that operate under RPM conditions will focus on non-
price factors, i.e., services.
iii. THE RPM ARRANGEMENT IS NOT DEALER INDUCED.
¶67. The appellant humbly submits that Lutyen implemented RPM to achieve the previously mentioned efficiencies and not solely on the
demands of certain distributors.123 Dealers would have difficulty coercing a manufacturer if they account for a trivial portion of its sales.124
The appellant submits that ‘certain distributors’ didn't include the online retailers125 as well as Sandy Home Store, the largest distributor of
Bohemia. While considering evidence whether there is retailer induced RPM, relevant evidence includes whether the retailers engaged in RPM
have a degree of bargaining power or whether they jointly have a degree of downstream market power.126 The appellant submits that ‘certain
distributors’ do not possess such market power and hence this agreement should not be considered dealer induced.
iv. NO LESS RESTRICTIVE ALTERNATIVE CAN ACHIEVE THE INTENDED EFFICIENCIES.
¶68. The appellant humbly submits that there are no least restrictive alternatives available to achieve the objectives and the use of RPM is
indispensable. Consideration of alternative is required only after it has been determined that the actual restraint poses a significant
competitive threat.127 The obvious problems of any such alternative are that it may fail to generate the optimal amount of service, may cost
more to implement, and fail to reduce anticompetitive dangers.128
¶69. If the application of what appears to be a commercially realistic and less restrictive alternative would lead to a significant loss of
efficiencies, the restriction in question becomes indispensable.129 In the present case, other alternatives like promotional allowances, dealer
reimbursements would lead to a significant loss of efficiencies as they are more difficult and costly to monitor, and thus less efficient, than
RPM agreements.130 Ensuring that there is no surreptitious retail discounting under an RPM regime is both easier and cheaper than
monitoring retailer provision of services for which a promotional allowance is given.131
ISSUE V. SANDY HAS INDULGED IN A REFUSAL TO DEAL U/S 3(4)(D).
¶70. The appellant submits that NCLAT has the jurisdiction to hear the appeal. Competition concerns arise when a firm in a dominant
position refuses to deal with another firm and that refusal to deal has a material impact on competition, to the detriment of end-users.132 The
principal approaches to determine the AAEC on competition due to refusal to deal are ‘consumer welfare’ test and ‘no economic sense’ or
‘profit sacrifice’ test.133 The respondent has sacrificed its profits and refused to deal with the appellant to gain an unfair advantage in the
market for UHD TVs.
A. THE NCLAT HAS THE JURISDICTION TO HEAR THE APPEAL.
i. THE CCB HAS PASSED THE SAID ORDER U/S 27.
¶71. The Supreme Court in its earlier decisions has stated that it is a settled rule of interpretation that the section heading or marginal
note can be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent.134 One can
use the headings of a provision for the purpose of construction of the text in the provision.135
¶72. In the present case, the appellant humbly submits that the marginal note of Section 27 states “Orders by Commission after inquiry
into agreements or abuse of dominant position”. By interpreting the heading of the section, we can conclude that the section intends to
include all the possible orders given by the Commission after the inquiry into the agreements or abuse of dominant position. Either these
orders can be to close the matter or to penalize the parties or any order that the Commission may deem fit. When the question arises as to
the meaning of a certain provision in a statute, it is not only legitimate but also proper to read that provision in context. The context here
means the statute as a whole, the previous state of the law, other statutes pari materia, the general scope of the statute, and the mischief
that it was intended to remedy.136
ii. THE CCB HAS VIOLATED PRINCIPLES OF NATURAL JUSTICE BY NOT GRANTING A HEARING TO THE APPELLANT.
¶73. The appellant humbly submits that the provisions of Section 36 stand violated. The CCB by not granting Lutyen a hearing137 has
violated the principles of natural justice according to which it is supposed to regulate its conduct and functioning.138 In consonance with the
settled principles of administrative jurisprudence, the CCB should at least record some reason even while forming a prima facie view.139
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However, while passing directions and orders dealing with the rights of the parties in its adjudicatory and determinative capacity, it is
required of CCB to pass speaking orders (written/reasoned orders), upon due application of mind, responding to all the contentions raised
before it by the rival parties.140
iii. THE ORDER IS APPEALABLE TO NCLAT.
¶74. A party may appeal to the NCLAT under Section 53A of the Act irrespective of the fact that there was no contravention of Section 3 or
Section 4 of the Act discovered by the CCB. Notwithstanding the contravention of Section 3 or 4, the order passed by the CCB will come
within the ambits of Section 27 because the heading of the provision naturally includes all the orders that are issued by the Commission after
inquiring into agreements or dominant position. The order passed under Section 27 is appealable to NCLAT under the bare provisions of
Section 53A.
¶75. Further, there are no explicit provisions as per the act according to which the Commission can reject the DG Report and without
giving a proper hearing to the rival parties, dismiss the complaint. Therefore, an appeal should be allowed under Section 53B of the Act.
B. SANDY'S CONDUCT AMOUNTS TO A REFUSAL TO DEAL.
i. THE FREEDOM TO CHOOSE TRADING PARTNERS IS NOT ABSOLUTE.
¶76. In Kodak141 , the Court itself noted in unqualified terms that the right to refuse to deal is not absolute and exists only if there are
legitimate competitive reasons. The protection for bare refusals to deal with an individual is lost when such refusals are to further a
monopolistic plan142 or are accompanied by unlawful acts.143 Sandy cannot unilaterally refuse to deal with the appellant because the terms
stated in the distributorship agreement are allegedly in violation of the Competition Act. This does not form a valid reason for refusing to deal
with the appellant.
ii. SANDY HAS NO ECONOMIC RATIONALE FOR THE REFUSAL.
¶77. Further, if a dominant enterprise refuses to deal in a competitor's products or stops providing services that it makes available to
others, or if the dominant firm has done business with the competitor and then stops, the firm needs a legitimate business reason for its
policies.144 The ‘no economic sense’ test is quite helpful in cases involving unilateral refusals to deal.145 In the present case, the respondent
profitably dealt in appellant's products but seeing the growth of appellant's market power and fearing competition in the UHD TV market, the
respondent refused to provide its distribution network for the sale of the appellant's UHD TVs.
¶78. In Lorain146 , the US Supreme Court considered whether the defendant newspaper, the only local business circulating news and
advertisements in the town, abused its dominant position by refusing to accept advertising from businesses that placed advertisements with
a small radio station. The Court approved an order requiring the newspaper to accept advertisements. The appellant submits that it is the
largest television manufacturer in Bohemia. When a downstream distributor having control on the largest distribution network and also
present in the upstream market of manufacture refuses to stock its competitor's product, it can be stated to act contrary to the interests of
the competition and using means which are not in consonance with the general market behavior.
iii. SANDY POSSESSES SUFFICIENT MARKET POWER IN THE DISTRIBUTION MARKET.
¶79. The appellant submits that as per the doctrine of foreclosure, a vertically integrated firm reduces the volume of transactions that take
place on the open market and therefore, forecloses part of the market to its rivals, with adverse competitive consequences.147 This implies
that the largest market distributor that was previously available for distributing the products of any manufacturer may now discriminate
against any rival firm so that it may remain at an advantage to the deprivation of another. In the words of a famous US case, this can act as
a “clog on competition” depriving rivals “of a fair opportunity to compete”.148
¶80. In the present case, the respondent owns productive efficiency. They represent real resource savings in that they can produce goods
of equal value for less, or have a given number of resources that can produce more or better goods.149 Truly substantial scale economies
dictate that a market has only a small number of efficient firms, and this can reduce the degree of competitiveness or in extreme cases even
produce monopoly.150
iv. SANDY HAS THE ULTERIOR MOTIVE OF LEVERAGING ITS DOMINANCE FROM THE DISTRIBUTION MARKET INTO THE UHD TV MARKET.
¶81. Antitrust laws frown upon such refusals that have a foreclosure effect on the substantial amount of a market i.e. whether the
contravening entity has a substantial market power to restrict competition in its favor.151 The real debate then is about the likelihood of the
practice to result in foreclosure of markets such that the competitors would not be able to compete in the market effectively.152 The Supreme
Court's Aspen decision did not adopt a definition of exclusionary conduct; it summarized what made the conduct at issue exclusionary by
noting that the defendant “was willing to sacrifice short-run benefits and consumer goodwill in exchange for a perceived long-run impact on
its smaller rival.”153
¶82. It is submitted that a refusal to deal may be stated as an ‘attempt to leverage market power’ when the practice enables the
dominant firm to acquire an unfair advantage in the non-dominant market or destroy a competitor with a dangerous probability of gaining
dominance in another market.154 An arbitrary refusal to deal by a dominant player is unlawful when it extends, preserves, creates or
threatens to create significant market power in a vertically related market.155
¶83. For the conduct to be exclusionary there must be no economically viable, actual or potential, alternatives to the refused input.156 It is
a refusal to deal because the respondent is the dominant distributor, so the appellant has no realistic alternative channel of supply on equally
reasonable terms, and due to the market structure, the appellant cannot adjust his market behavior to the unavailability of the services.
Therefore, the refusal deprives Lutyen of essential services.
PRAYER
Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities cited, this Hon'ble Court may be pleased to
adjudge and declare that:
In Lutyen v. CCB:
• The market purchases and the APA were not inter-connected transactions.
• Item 1 Schedule 1 of the Combination Regulations exempted the market purchases from notification.
• The MCA notification exempted the APA from notification.
• Set aside the CCB's order.
In Lutyen v. Sandy & RK & CCB:
• Lutyen is not dominant in the market for sale and manufacture of UHD TV in Bohemia.
• Lutyen's conduct does not amount to a tie-in arrangement since it would not cause AAEC.
• Lutyen has not abused its dominance in the UHD TV market to increase its sale in the casting devices market.
• Lutyen's conduct does not amount to Resale Price Maintenance since it would not cause AAEC.
• Lutyen has not indulged in an exclusive arrangement and therefore, not violated the conditions for the approval of the acquisition.
In Lutyen v. Sandy & CCB:
• The CCB's order is appealable.
• Sandy's conduct amounts to a refusal to deal.
1 Combination Regulations 2011, Item 1 Schedule 1.
2 Moot Proposition, ¶ 8.
3 The Competition Act 2002, § 36, 64.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
4 The Competition Act 2002, § 36(1).
5 CCI (General) Regulations 2009.

6 CCI (General) Regulations 2009, reg 48.
7 Moot Proposition, ¶ 9-11.
8 Combination Regulations 2011, reg 9(4).

9 The Competition Act 2002, § 43A.
10 EMC order u/s 43A, Combination Registration No C-2015/07/293.
11Thomas Cook order u/s 43A, Combination Registration No C-2014/02/153; Vedanta order u/s 31(1), Combination Registration No C-2012/03/45; Tech Mahindra order u/s 31(1),
Combination Registration No C-2012/03/48.
12
Aditya-Birla notice u/s 6(2), Combination Registration No C-2012/07/69.
13 Baring-Hexaware order u/s 31(1), Combination Registration No C-2013/09/130.
14 Thomas Cook (India) Limited v. CCI Appeal No 48/2014 (COMPAT).

15
Moot Proposition, ¶ 7.
17
Thomas Cook (India) Limited v. CCI Appeal No 48/2014 (COMPAT).
19
Combination Regulations 2011, Item 1 Schedule 1.
20
Combination Regulations 2011, Item 1 Schedule 1 Explanation (A).
21 Sumitomo Mitsui/Reliance Capital order u/s 31(1), Combination Registration No C-2014/12/235.
22
Piramal Enterprises order u/s 31(1), Combination Registration No C-2015/02/249.
23
Abbot/Mylan order u/s 31(1), Combination Registration No C-2014/08/202; Alibaba/Jasper Infotech order u/s 31(1), Combination Registration No C-2015/08/301.
24 Abbot/Mylan order u/s 31(1), Combination Registration No C-2014/08/202.
25
CCL/CGL order u/s 43A, Combination Registration No C-2015/05/276.
26
Moot Proposition, ¶ 4, 6; Clarifications 14, 31.
27 Combination Regulations 2011, Item 1 Schedule 1 Explanation (A).
28 Competition and Markets Authority, ‘Mergers: Guidance on the CMA's Jurisdiction and Procedure’ 2014, ¶ 4.20.
29
European Commission, ‘White Paper: Towards more effective EU merger control’ 2014.
30
Aditya-Birla notice u/s 6(2), Combination Registration No C-2012/07/69.
31 Thomas Cook (India) Limited v. CCI Appeal No 48/2014, ¶ 35-36 (COMPAT); Sanjay Industrial Corporation v. CCE, (2015) 14 SCC 639.
32
Moot Proposition, ¶ 8-9.
33
Abhiram Singh v. CD Commachen, (2017) 2 SCC 629 : AIR 2017 SC 401.
34 Excel Crop Care Ltd v. CCI, (2017) 8 SCC 47.
35
ITC order u/s 43A, Combination Registration No C-2017/02/485.
36
ITC order u/s 43A, Combination Registration No C-2017/02/485.
37
CIT v. Vatika Township Private Limited, (2015) 1 SCC 1.
38
Press Information Bureau, ‘Ministry of Corporate Affairs issues fresh notifications’ (30 March 2017) http://pib.nic.in/newsite/PrintRelease.aspx?relid=160236.
39 ITC order u/s 43A, Combination Registration No C-2017/02/485.
40 Bryan Garner (ed), Black's Law Dictionary (8th edn, 2004).
41
Vijay v. State of Maharashtra, (2006) 6 SCC 286.
42
CIT v. Vatika Township Private Limited, (2015) 1 SCC 1.
43 GS Mace details u/s 6(5), Form III Registration No C-L/2011/12/03.
44
Vikrant Bhagi v. Media Video Limited Case No 28/2013 (CCI); Brown Shoe Co v. US, 370 US 294 (1962); US v. Grinnell Corp, 384 US 563 (1966).
45 Deepa Narula v. Taneja Developers and Infrastructures Ltd Case No 22/2012 (CCI).
47
Illinois Tool Works Inc v. Independent Ink Inc, 126 S Ct 1281, 1293 (2006).
48
European Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses’ 2005, ¶ 32.
50
Case 85/76 Hoffmann-La Roche v. Commission, 1979 ECR 461; Case 27/76 United Brands & Co v. Commission, 1978 ECR 207.
51 Fast Track Call Cab Pvt Ltd v. ANI Technologies Pvt Ltd Case No 6 & 74/2015 (CCI).
52
Moot Proposition, ¶ 13; Clarification 31.
53
Fast Track Call Cab Pvt Ltd v. ANI Technologies Pvt Ltd Case No 6 & 74/2015 (CCI).
54 Hans Hoffmann, ‘More pixels, More immersive television experience’ (2014) 7 Eastern Beijing University Technical 8, 9.
55 The Competition Act 2002, § 4(2)(d).
56
MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd Case No 13/2009 (CCI).
58 Clarification 34.
59
GAF Corp v. Eastman Kodak Co, 519 F Supp 1203, 1227 (SDNY 1981).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
60 Northern Pacific Railway Company v. US, 356 US 1 (1958).

61 Case 85/76 Hoffman-La Roche v. Commission, 1979 ECR 461.
62
Daniel Crane, ‘Multiproduct Discounting: A Myth of Non-price Predation’ (2005) 72(1) The University of Chicago Law Review 27, 45.
64 Verizon Communications Inc v. Law Offices of Curtis Trinko LLP, 540 US 398 (2004).
65
Daniel Crane, ‘Multiproduct Discounting: A Myth of Non-price Predation’ (2005) 72(1) The University of Chicago Law Review 27, 43.
66
Case T-65/89 BPB Industries PLC & British Gypsum Ltd v. Commission, (1993) 2 ECR 39, ¶ 69; Case T-228/97 Irish Sugar v. Commission, (1999) 2 ECR 2969, ¶ 112; International
Competition Network, ‘ICN Unilateral Conduct Workbook’ 2015, chap 6.
67 Brooke Group Ltd v. Brown & Williamson Tobacco Corp, 509 US 209 (1993).
68
69
Antitrust Modernization Commission, ‘Report and Recommendations’ 2007, 82.
70 European Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses’ 2005, ¶ 95.
71 Antitrust Modernization Commission, ‘Report and Recommendations’ 2007, 95.
72 In Re Bharti Airtel Ltd v. Reliance Jio Infocomm Ltd Case No 3/2017 (CCI).
73
Ortho Diagnostics Systems Inc v. Abbott Labs Inc, 920 F Supp 455, 467.
75 3M v. LePage's Inc, 124 S Ct 2932 (2004).

76
Thomas Lambert, ‘Evaluating Bundled Discounts’ (2005) 89 Minnesota Law Review 1688.
77 In Re Bharti Airtel Ltd v. Reliance Jio Infocomm Ltd Case No 3/2017 (CCI).
78 Brooke Group Ltd v. Brown & Williamson Tobacco Corp, 509 US 209 (1993).
79
Shamsher Kataria v. Honda Siel Cars India Ltd Case No 3/2011 (CCI).
80 Cascade Health Solutions v. PeaceHealth, 502 F 3d 895, 918 (9th Cir 2007).
82 Janusz Ordover & Robert Willig, ‘An Economic Definition of Predation: Pricing and Product Innovation’ (1981) 91 Yale Law Journal 8, 9-10.
83
Moot Proposition, ¶ 3; Clarification 23.
84
Herbert Hovenkamp, ‘Tying Arrangements and Lawful Alternatives: Transaction Cost Considerations’ (20 February 2011) https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1763386.
85
US v. Jerrold Electric Corp, 187 F Supp 545, 556-557 (ED Pa 1960) affirmed 365 US 567 (1961); Queen City Pizza v. Domino's Pizza, 124 F 3d 430, 440-41 (3rd Cir 1997).
88
Moot Proposition, ¶ 10
89 The Competition Act 2002, § 18.
90 The Constitution of India 1950, art 19(1)(g).

91
Vishwanath Pingali, ‘Competition Law in India: Perspectives’ (2016) 41(2) The Journal for Decision Makers 168.

94
The Competition Act 2002, § 3(4)(e).
95
Leegin Creative Leather Products Inc v. PSKS Inc, 551 US 877 (2007).
96
Shri Ghanshyam Dass Vij v. Bajaj Corp Ltd Case No 68/2013 (CCI).
97 OECD, ‘Policy Roundtables on Resale Price Maintenance’ 2008, 274.
99 Fast Track Call Cab Pvt Ltd v. ANI Technologies Pvt Ltd Case No 6 & 74/2015 (CCI).
100
Lester Telser, ‘Why Should Manufacturers Want Fair Trade?’ (1960) 3 The Journal of Law and Economics 86.

103 Lester Telser, ‘Why Should Manufacturers Want Fair Trade?’ (1960) 3 The Journal of Law and Economics 86.
104
Marina Lao, ‘Resale Price Maintenance: The Internet Phenomenon and ‘Free Rider’ Issues’ (2010) 55 Antitrust Bulletin 473.
105 United States v. Cuisinarts Inc, 4 Trade Regulation Reporter 280 (D Conn 1980).
106 Phillip Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and their Application (2nd edn, Aspen Publishers 2004).
108 Mart Kneepkens, ‘Resale Price Maintenance: Economics Call for a More Balanced Approach’ (2007) 28 European Competition Law Review 656, 658.
109 Casa Ley v. Yakult DE-29-2000 (CFC Mexico).
110
Casa Ley v. Yakult DE-29-2000 (CFC Mexico).
111
Phillip Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and their Application (2nd edn, Aspen Publishers 2004).
112 Marina Lao, ‘Resale Price Maintenance: The Internet Phenomenon and ‘Free Rider’ Issues’ (2010) 55 Antitrust Bulletin 473.
113 Yannis Bakos, ‘The Emerging Landscape for Retail E-Commerce’ (2001) 15(1) Journal of Economic Perspectives 69.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
115
116 Brian Henry & Eugene Zelek, ‘Establishing and Maintaining an Effective Minimum Resale Price Policy: A Colgate How-To’ (7 May 2013)
https://www.freeborn.com/sites/default/files/white_papers/establishing_and_maintaining_an_effective_minimum_resale_price_policy_-_a_colgate_how-to.pdf.
117
OECD, ‘Policy Roundtables on Resale Price Maintenance’ 2008, 169.
118 Leegin Creative Leather Products Inc v. PSKS Inc, 551 US 877 (2007).
119 Leegin Creative Leather Products Inc v. PSKS Inc, 551 US 877 (2007).
120
Howard Marvel, ‘The Resale Price Maintenance Controversy: Beyond the Conventional Wisdom’ (1994) 63 Antitrust Law Journal 59.
122
European Commission, ‘Guidelines on Vertical Restraints’ 2010, ¶ 61.
123
125
126
OECD, ‘Policy Roundtables on Resale Price Maintenance’ 2008, 212.
129
European Commission, ‘Guidelines on Vertical Restraints’ 2010, ¶ 125.
130
Ward Bowman, ‘The Prerequisites and Effects of Resale Price Maintenance’ (1955) 22 The University of Chicago Law Review 825.
131 Marina Lao, ‘Resale Price Maintenance: The Internet Phenomenon and ‘Free Rider’ Issues’ (2010) 55 Antitrust Bulletin 473.
132
OECD, ‘Policy Roundtables on Refusals to Deal’ 2007, ¶ 9.
133
Antitrust Modernization Commission, ‘Report and Recommendations’ 2007, 102.
134 N.C. Dhondial v. Union of India, (2004) 2 SCC 579 : AIR 2004 SC 1272.
135
Qualter Hall & Co v. Board of Trade, (1961) 3 All ER 389.
136
RS Raghunath v. State of Karnataka, (1992) 1 SCC 335 : AIR 1992 SC 81.
138
The Competition Act 2002, § 36.
139 CCI v. SAIL, (2010) 10 SCC 744.
140
CCI v. SAIL, (2010) 10 SCC 744.
141
Eastman Kodak Co v. Image Technical Services Inc, 504 US 451 (1992).
142 Lorain Journal v. United States, 342 US 143 (1951).
143
FTC v. Beech-Nut Packing Co, 257 US 441 (1922).
144
Aspen Skiing Co v. Aspen Highlands Skiing Corp, 472 US 585 (1985).
145 Herbert Hovenkamp, The Antitrust Enterprise, Principle and Execution (1st edn, Harvard University Press 2008) 152.
146
Lorain Journal Co v. United States, 342 US 143 (1951).
147
MA Utton, Market Dominance and Antitrust Policy (2nd edn, Edward Elgar Publishing 2003) 218.
148 Brown Shoe v. US 370 US 294 (1962).
149
150
151
United States v. Colgate & Co, 250 US 300 (1919).
152 Hemraj Electronics v. Monica Electronics Pvt Ltd RTP Enquiry No 39/1985 (MRTPC).
153
Aspen Skiing Corporation v. Aspen Highlands Skiing Corp, 472 US 585 (1985); Advanced Health-Care Services v. Radford Community Hospital, 910 F 2d 139, 148 (4th Cir 1990).
154 United States v. Griffith, 334 US 100 (1948).
155
Phillip Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and their Application (2nd edn, Aspen Publishers 2004) ¶ 770b.
156
OECD, ‘Policy Roundtables on Refusals to Deal’ 2007, ¶ 15; Case 7/97 Oscar Bronner v. Mediaprint Zeitungs, (1998) 1 ECR 7791, ¶ 43.
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Page 1 Monday, February 07, 2022

9th NLUJ Antitrust Moot, 2018

In the National Company Law Appellate Tribunal of Bohemia

All ER All England Reports

the manner required for its best functioning.107

4 The Competition Act 2002, § 36(1).

5 CCI (General) Regulations 2009.

8 Combination Regulations 2011, reg 9(4).

14 Thomas Cook (India) Limited v. CCI Appeal No 48/2014 (COMPAT).

60 Northern Pacific Railway Company v. US, 356 US 1 (1958).

75 3M v. LePage's Inc, 124 S Ct 2932 (2004).

90 The Constitution of India 1950, art 19(1)(g).

93 The Competition Act 2002, § 31(3).

102 OECD, ‘Policy Roundtables on Resale Price Maintenance’ 2008, 216.

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