029 A

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER [TABLE OF CONTENTS]
TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………… iii
INDEX OF AUTHORITIES .......................................................................................................... vi
STATEMENT OF JURISDICTION........................................................................................xviii
STATEMENT OF FACTS .......................................................................................................... xix
ISSUES FOR CONSIDERATION .............................................................................................xxii
SUMMARY OF ARGUMENTS ...............................................................................................xxiii
WRITTEN ARGUMENTS ............................................................................................................ 1
ISSUE A: WHETHER NOVAK IS IN VIOLATION OF SECTION 3 OF THE ACT ...................... 1
[I.] THE RELEVANT MARKET IS NOT LIMITED TO FILMS AND TV SERIES ON OTT
PLATFORMS .......................................................................................................... 2
[II.] NOVAK HAS NO MARKET POWER .................................................................................. 6
[III] THE CO-PRODUCTION AGREEMENTS AND ARTIST AGREEMENTS DO NOT

CAUSE AAEC......................................................................................................... 7
[IV] THE PRO-COMPETITIVE EFFECTS OUTWEIGH ITS ANTI-COMPETITIVE

EFFECTS ................................................................................................................. 9
[V.] THE AGREEMENT CAN BE OBJECTIVELY JUSTIFIED .............................................. 12
ISSUE B: WHETHER NOVAK IS IN VIOLATION OF SECTION 4 OF THE COMPETITION

ACT .............................................................................................................................. 13
[I] THE RELEVANT MARKET IS NOT LIMITED TO FILMS AND TV SERIES ON OTT
PLATFORMS ........................................................................................................ 14
[II] NOVAK DOES NOT HAVE A DOMINANT POSITION IN THE RELEVANT MARKET
................................................................................................................................ 14
[III] NOVAK HAS NOT ABUSED ITS DOMINANCE UNDER SECTION 4 OF THE
COMPETITION ACT ........................................................................................... 18
ISSUE C: WHETHER MR. SAMESH RIPPY HAS LOCUS TO CHALLENGE THE ORDER OF THE
CCB WITHIN THE MEANING OF SECTION 53B OF THE COMPETITION ACT, 2002 .................. 23
i
FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024
WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER [TABLE OF CONTENTS]
[I]. THE PHRASE ‘ANY PERSON’ UNDER § 53B MUST BE CONSTRUED

NARROWLY ........................................................................................................ 24
[II]. THE SIERRA ACQUISITION DOES NOT HARM MR. SAMESH’S LEGAL
INTERESTS .......................................................................................................... 25
ISSUE D: WHETHER SIERRA ACQUISITION CAUSES AAEC IN THE MARKET IN LIGHT

OF VARIOUS FACTORS UNDER SECTION 20(4) OF THE COMPETITION
ACT? ............................................................................................................................ 26
[I.] THE CCB GAVE DUE CLEARANCE TO THE COMBINATION..................................... 26
[II.] THERE IS NO SIGNIFICANT IMPEDIMENT TO EFFECTIVE COMPETITION IN THE

RELEVANT MARKET......................................................................................... 27
[III.] THE COMBINATION DOES NOT CAUSE AAEC IN THE MARKET .......................... 28
[IV.] THE COMBINATION CAN BE OBJECTIVELY JUSTIFIED BASED ON

EFFICIENCIES ARISING FROM IT ................................................................... 30
PRAYER ……………………………………………………………………………………….58
FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024

ii
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [LIST OF ABBREVIATIONS]
LIST OF ABBREVIATIONS
S. No. ABBREVIATI MEANING

ON
1. Section
2. Paragraph
3. & And
4. Percentage
%
5. AAEC Appreciable Adverse Effect on

Competition
6. AIR All India Reporter
7. Another
8. Assn Association
9. BCLT BinTin Land Company Law Tribunal
10. CCB Competition Commission of BinTin Land
11. CCI Competition Commission of India
12. CO Company
13. COMPAT Competition Appellate Tribunal
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 iii
14. Corp Corporation
15. DG Director-General
16. DRJ Delhi Report Judgement
17. ECJ European Court of Justice
18. ECR European Court Reports
19. Ed Edition
20. Etc. Etcetera
21. EU European Union
22. FDI Foreign Direct Investment
23. GDP Gross Domestic Product
24. IPR Intellectual Property Rights
25. LLP Limited Liability Partnership
26. Ltd Limited
27. NCLAT National Company Law Appellate Tribunal
28. OECD Organisation for Economic Co-operation and

Development
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 iv

29. OFT Office of Fair Trading
30. OJ Official Journal
31. Ors Others
32. OTT Over The Top
33. OUP Oxford University Press
Pvt.
34. Private
35. Reg. Regulation
SC
36. Supreme Court
SCC
37. Supreme Court Cases
Small but Significant and Non-Transitory Increase in

38. SSNIP Price
Television
39. TV
40. UOI Union of India
41. v. Versus
42.
3D Three Dimensional
43.
4D Four Dimensional
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 v

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [ÍNDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
S.No. INDIAN PAGE No.

CASES
Accessories World Car Private Limited v. Sony India Pvt Ltd,
l. Case No. 03 of 2020 (CCI) 6
All Índia Online Vendors Assn. v. Flipkart Índia Pvt. Ltd., Case
2. No. 20 of 2018 (CC1) 4
Ashish Ahuja v. Snapdeal, Case no. 17 of 2014 (CCI)
3. 5
Automobiles Dealers Assn. v. Global Automobiles Ltd. and Anr.,
4. Case No. 33 of 2011 (CCI) 6
5. Belaire Owners Association v. DLF Ltd. Case no. 19 of 2010 5

(CCI)
6. Eros International Media Limited v. Central Circuit Cine 7

Association, Case No. 56 of 2010 (CCI)
FICCI Multiplex Assn of India v. United Producers/Distributors 15

Forum, Case No. 01 of 2009 (CCI)
7.
THE FIFFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 vi

8. FX Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India 13

Ltd, Case No. 36 of 2014 (CCI)
Hemant Sharma and Other v. All India Chess Federation, Case no.
79 of 2011(CCI)
9. 12
Jasbhai Motibhai Desai v. Roshan Kumar AIR 1976 SC 578
10. 24-25
Jasper Infotech v. Kaff Appliances, Case no. 61 of 2014 (CCI).
11. 1
Jeetender Gupta v. Competition Commission of India, Appeal No.

30 of 2014 (COMPAT)
12. 24
13. M/s Atos Worldline India Pvt Ltd. v. M/s Verifone India Sales Pvt. 5
Ltd. Case no. 56 of 2012 (CCI).
14. M/s ESYS Information Technologies Pvt. Ltd. v. Intel Corp. & 1
Ors, Case no. 48 of 2011 (CCI).
Mahindra & Mahindra v. UOI (1979) 2 SCC 529
15. 7
THE FIFFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 vii
MCX Stock Exchange Ltd and Ors v. NSE of India, Case no. 13 of
2009 (CCI)
16. 5
Mr Ramakant Kini and Dr L.H. Hiranandani Hospital, Powai,

Mumbai, Case No. 39 of 2012 (CCI
17. 1
Prime Mag Subscription Services v. Wiley India Pvt. Ltd., Case

No. 07 of 2016 (CCI)
18. 6
Ramachandran v. JSW Cements Limited CCI Case No. 76/2017. 14
19.
20. R.V. Ramgopal v. Shri Ram Transport Finance Co. Ltd., 2012 SCC 15, 17
OnLine CCI 167
Saint Gobain Glass India Limited Vs Gujarat Gas Company

Limited, Case no. 20 of 2013. (CCI)
21. 3
Samir Agarwal v. Competition Commission of India (2021) 3 SCC

136
22. 24
Shri Avtar Singh Vs M/s. Ansal Township and Land Development

Ltd., Sh. Pranav Ansal and Sh. Anil Kumar. Case no. 03 of 2014
23. (CCI) 2
THE FIFFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 viii
Shri Ghanshyam Das Vij v M/s Bajaj Corporation Limited and

Ors, Case No. 68 of 2013 (CCI).
25. 9
26. Sonam Sharma v. Apple, Case no. 24 of 2011 (CCI). 12
Tamil Nadu Consumer Products v. Fangs Technology Private Ltd,

Case no. 15 of 2018 (CCI)
27. 6
Tata Engineering and Locomotive Co. Ltd v. The Registrar of

Restrictive Trade Agreement, AIR 1977 SC 973
28. 7,9
29. Vilakshan Kumar Yadav v. ANI Technologies Private Limited CCI 15

Case No. 21/2016
THE FIFFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 ix

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [INDEX OF AUTHORITIES]
S.No. STATUTES PAGE No.

AND
REGULATIO
NS
1. Competition Act, 2002 21, 22,
2. Competition Commission of India (General) Regulations 2009 30, 33
S.No. ARTICLES PAGE No.
1. Ben Holles de Peyer, ‘EU Merger Control and Big Data’ (2018) 30
13(4) Journal of Competition Law and Economics
Evens, Tom (2014) : Clash of TV platforms: How broadcasters and

2. distributors build platform leadership, 25th European Regional
Conference of the International Telecommunications Society (ITS) 10
Frank H. Easterbrook, Vertical Agreements and the Rule of

Reason, 53 Antitrust Law Journal (1984)
3. 6
Hedda Berto, ‘Sharing is caring – An Examination of the Essential

Facilities Doctrine and its Applicability to Big Data’ (2020),
http://www.diva-
4. portal.se/smash/get/diva2:1435499/FULLTEXT01.pdf 28
x
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024
5. Rossella Incardona, ‘Distribution Agreements Under EC 9

Competition Law’ (2005)
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1185371>
Vikas Kathuria, ‘Vertical Restraints under Indian Competitio

Economics’ (2022), 10(1), Journal of Antitrust Enforcement,
6
6.
7. Competition Commission of India, ‘Market Study on E-Commerce 11, 21

in India’ (2020) < https://www.cci.gov.in/economics-
research/market-studies/details/18/6 >
xi
THE FITEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024
S.No. BOOKS PAGE No.
Atilano Jorge Padilla, The Role of Supply Side Substitution in the

definition of the relevant market in Merger Control (Neera 2001).
2. David S. Evans, ‘Vertical Restraints in a Digital World’ in The 10, 11

Evolution of Antitrust in the Digital Era: Essays on Competition
Policy (Boston: Competition Policy International, 2020)
3. Peter Roth QC, Bellamy & Child: European Union of Law 8

Competition 497 (OUP 2018)
4. Richard Whish and David Bailey, COMPETITION LAW, (OUP 7th 4, 12, 28
Edn, 2008)
5. 9, 25
S M Duggar, S M Duggar’s Guide to Competition Act, 2002 261

(LexisNexis 2017).
6. Seung-Hyeok Baek, Min-Gown Park and Jin-Hua Zang, ‘An 13

Exploratory Study on the Benefit Sharing of Broadcasting Content
Industry’ in Computer and Science Information (Roger Lee eds,
Springer 2019)
S Bishop and M Walker (1999), ‘The Economics of EC Competition
7. Law: Concepts, Application and Measurement’ (2007) (3rd Edition, 17, 21
London, Sweet and Maxwell)
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xii
S. NO. REPORTS, NOTICE GU IDELINES PAGE

NO.
1. Competition Commission of India, ‘Market Study on E-Commerce 11,21

in India’ (2020) < https://www.cci.gov.in/economics-
research/market-studies/details/18/6 >
2. Competition Commission of India, ‘Market Study on the Film 10

Distribution Chain in India’ (2022) <
https://www.cci.gov.in/images/whatsnew/en/market-study-on-the-
film-distribution-chain-in-india1665747371.pdf >
3. EU Guidelines on vertical restraints OJ C-130/1 (2010) 6
European Commission, ‘Guidelines on the Assessment of

Horizontal Mergers under the Council Regulation on the control of
4. concentrations between undertakings’, OJ C-31 (2004) 8
5. European Commission, ‘Notice on the Definition of the Relevant 4

Market for the Purposes of [EU] Competition Law’, OJ C-372/5
(1997),
6. Office of Fair Trading, ‘Assessment of Market Power’, OFT-415 7

(2004)
7. Organisation for Economic Co-operation and Development 28

‘Merger Remedies’ (OECD, 2003) <
https://www.oecd.org/daf/competition/34305995.pdf>
8. Organisation for Economic Co-Operation and Development, 34

‘Competition Policy and a Changing Broadcast Industry’ (1993)
9. Organisation for Economic Co-operation and Development, ‘Start- 20

ups, Killer Acquisitions and Merger Control’, (OECD, 2020)
<https://www.oecd.org/daf/competition/start-ups-killer-
acquisitions-and-merger-control-2020.pdf>
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xiii
10. Organisation for Economic Co-operation and Development, ‘The 21

Evolving Concept of Market Power in the Digital Economy’,
(OECD Competition Policy Roundtable Background Note, 2022)
11. Report of High level Committee on Competition Policy and Law 22

(Raghavan Committee)
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xiv
S.No. FOREIGN PAGE No.

CASES
1. Airtours v Commission [2002] 5 CMLR 317 26,27
2. Association belge des consommateurs test v. European 25

Commission, [2011] ECR 773
3. Bertelsmann AG v Independent Music Publishers and Labels 26

Association [2008] 5 CMLR 1073.
Commission v Tetra Laval BV [2005] 4 CMLR 573

26
4.
Dr Pepper/Seven-Up Companies v Federal Trade Commission

991 F.2d 859 (D.C. Cir. 1993
5. 29
Federal Trade Commission v Staples 970 F. Supp. 1066 (D.D.C.

1997)
6. 29
7. Film Purchases by German Televisions Stations OJ [1989] L 13,19

284/36
7. General Electric Company v Commission [2006] 4 CMLR 686. 26
Hugin Kassaregister AB v. Commission 22/78 [1979] ECR 1896
8. 4
Illinois Brick Co. v Illinois [1977] 97 S.Ct.2061.
9. 24
10. Maxima Latvija v. Konkurences Padome Case No. 345 of 2014 8

(ECJ)
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xv

THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xvi
11. Plaumann & Co v. Commission of the European Economic 25

Community, 25/62 [1963] ECR 93.
12. Pronuptia de Paris GmbH v Schillgalis, Case No. 161 of 1984 13

(ECR)
13. Société Générale des Grandes Sources and others v Commission of 25

the European Communities, 96/92 [1992] ECR 118
14. Société Technique Minière v. Maschinenbau Ulm [1966] ECR 1

337
15. Tetra Laval v Commission [2002] 5 CMLR 1182 26
United Brands v Commission Case 27/76 [1978] ECR 207

16. 2,12
Michelin v. Commission [1983] ECR 3461 24
USA v. Paramount Pictures 334 U.S. 131 (1948) 25
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xvii
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [STATEMENT OF JURISD ICTION]
STATEMENT OF JURISDICTION
I. COMPETITION APPEAL (BA) NO. 2222 OF 2023
The Petitioner, Novak has approached this Hon’ble Tribunal under Section 53B of the BinTin
Land Competition Act, 2002. The Respondent, Orion humbly submits to the jurisdiction of the
tribunal.
II. COMPETITION APPEAL (BA) NO. 2192 OF 2023
The Petitioner, Novak has approached this Hon’ble Tribunal under Section 53B of the BinTin
Land Competition Act, 2002. The Respondent, Assistant Director humbly submits to the
jurisdiction of the tribunal.
III. COMPETITION APPEAL (BA) NO. 2323 OF 2023
The Petitioner, Samesh Rippy has approached this Hon’ble Tribunal under Section 53B of the
BinTin Land Competition Act, 2002. The Respondents, Novak and CCB humbly submit to the
jurisdiction of the tribunal.
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xviii
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [STATEMENT OF FACTS]
STATEMENT OF FACTS
[BACKGROUND FACTS]
BinTin Land is a diversified middle-income economy where the media and entertainment sector
has been a major contributor to GDP since the 2000s. This sector consists of two segments: films
and TV shows, which have a worldwide reputation due to their complex and humorous storylines,
subtle acting and direction.
Traditionally the film segment was dominated by large production houses and exhibitors,
relegating small producers to the periphery as fringe players. Similarly, the TV segment was
dominated by large conglomerate networks. Under a traditional setup, the producers had a
revenue-sharing arrangement with exhibitors. However, owing to the increasing dependency of
producers on multiplexes, exhibitors started to impose non-negotiable terms on all producers,
leaving a consolidated market with only 4-5 major production houses and no new entrants in
recent years.
In 2021 due to the Novid-19 pandemic, a lockdown was imposed in BinTin Land, forcing people
to stay home. As a result, numerous OTT platforms, including Novak, emerged to provide people
with content in their homes.
[CO-PRODUCTION AGREEMENTS]
With the entry of OTT platforms, many producers viewed these platforms as an additional source
of revenue along with multiplexes and television networks. In the film segment, Novak entered
into Co-Production agreements with small producers, thereby allowing them to effectively
compete in the market. This diversified the market and also started to counteract the hegemony of
the exhibitors. One such Co-Production Agreement was between Novak and Capsicum, a
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xix
production house that sought to screen its films on Novak’s platforms instead of multiplexes due
to the dishonest practices of exhibitors. To cater to its viewers, Novak also had to adopt clauses
to control the quality of the films through vetting rights and choice of lead actors. Keeping the
interests of consumers in mind, another clause of the agreement allowed multiplexes to screen
movies requiring 3D/4D technologies. Gradually, the use of such agreements became a standard
practice in the segment. However, to ameliorate the concerns of its business partners, Novak also
altered its agreement to reduce the term from 5 years to 3 years and introduced a revenue-sharing
agreement giving producers a 2% stake in the total revenue generated from the clicks on the
platform.
Nonetheless, alleging reduced footfall in multiplexes, Orion, a group of multiplexes, filed an
information with the CCB against Novak, alleging abuse of market dominance through denial of
market access and vertical restraints.
[ARTIST AGREEMENTS]
In the TV segment, Novak had to balance the interests of the consumers demanding the same actor
to play a specific character and artists who wished to take up other projects for career growth. As
a result, Novak entered into multiple Artist Agreements with various actors/actresses in TV shows.
One such agreement was forged between Novak and Asmita Sengupta. This agreement obligated
Sengupta to exclusively work with Novak during the continuance of the 6 seasons of the show to
ensure continuity. Moreover, there was a provision of conflict-free windows during which the
artists could work with other producers.
Yet, another important requirement was to ensure the non-leakage of important information
relating to Novak’s TV shows. As a result, Novak signed a confidentiality clause with the artists.
Since these TV series were produced by Novak itself, another clause of the agreement allowed
Novak to retain its merchandising and trademark rights over the characters. An Assistant Director
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xx

submitted an anonymous Information to the CCB, alleging abuse of dominance by Novak due to
the use of such agreements.
[COMMISSION’S DECISION]
Concerning Orion’s information, the CCB, on receiving the DG’s Investigation Report and
hearing both parties, held that Novak has violated sections 3 and 4 of the Competition Act.
Similarly, for the anonymous information filed by the Assistant Director, the CCB held that
sections 3 and 4 have been contravened.
[THE SIERRA ACQUSITION]
To cater to the consumer demand for a variety of content, Novak acquired a 28% equity
shareholding in Sierra, another small OTT platform. This acquisition was notified to the CCB
under section 6(2) in the interest of full disclosure. The CCB found that the market is characterized
by multiple small OTT platforms and, hence, approved the acquisition on May 26, 2023. However,
Mr. Samesh Rippy, a majority shareholder in Bart, the OTT platform with the highest market
share, requested a detailed review of this transaction before the BCLT.
[APPEAL BEFORE BCLT]
Following the issuance of orders by the CCB against Novak for violation of the Competition Act,
the aggrieved platform has approached the BCLT under section 53. It has filed two separate
appeals, challenging the holding of the CCB about both, the information filed by Orion and the
anonymous Information submitted by the Assistant Director.
Mr. Samesh Rippy has also filed an appeal before the BCLT under section 53, challenging CCB’s
approval of the acquisition of Sierra by Novak.
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xxi
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [ISSUES FOR CONSIDERATION]
ISSUES FOR CONSIDERATION
-ISSUE A-
WHETHER NOVAK IS IN VIOLATION OF SECTION 3 OF THE ACT
- ISSUE B -
WHETHER NOVAK IS IN VIOLATION OF SECTION 4 OF THE ACT
- ISSUE C-
WHETHER MR. SAMESH RIPPY HAS LOCUS TO CHALLENGE THE ORDER OF

THE CCB DATE MAY 26, 2023 WITHIN THE MEANING OF SECTION 53B OF THE
COMPETITION ACT, 2002
- ISSUE D -
WHETHER T HE SIERRA ACQUISITION CAUSES AAEC IN

THE MARKET IN LIGHT OF VARIOUS FACTORS UNDER
SECTION 20(4) OF THE COMPETITION ACT?
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 xxii
WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT [SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
ISSUE A
It is submitted that Novak has not violated §3(4)(c) of the Competition Act. Under §3(4), vertical
restraints are declared to be anti-competitive only if they cause AAEC. In the present case, the
Co-Production Agreements and Artist Agreements entered into by Novak do not cause AAEC.
This is because firstly, the relevant market for the two agreements is not restricted to OTT
platforms and extends to the entirety of the industry. Secondly, Novak does not possess any market
power in the defined relevant market. Thirdly, the said agreements do not result in anti-competitive
effects since neither do they create barriers for new entrants nor do they cause foreclosure of the
market. Moreover, the said agreements have led to accrual of consumer benefits, improvement in
the production or distribution of goods and promotion of technical and economic development.
Therefore, the pro-competitive effects of the said agreements outweigh their anti-competitive
effects. Lastly, the agreements can be objectively justified because they reasonably protect the
economic interests of Novak and the restrictive clause on retaining merchandising rights is
exempted under §3(5).
ISSUE B
It is submitted that Novak has not violated section 4 of the Competition Act. This is because
firstly, Novak does not have a dominant position in the market. The absence of Novak’s
dominance is evidenced by the relatively low market share it possesses, the presence of
significant other players with higher market shares in the market, and the high countervailing
buyer power consumers possess in the film and TV series market. Secondly, Novak also does
not have a position in the market that enables it to affect its consumers and competitors in its
favor. Once the non-dominance of Novak is established, it is submitted that even if Novak has

xxiii
a dominant position in the market, it has not abused its position through denial of market access
or imposition of illegal vertical restraints. This is because firstly, film and TV series content is
not an essential facility in the relevant market, and secondly, even if we consider them as an
essential facility, Novak has not engaged in their denial. Moreover, the vertical integration
undertaken by Novak adds efficiency to the production process and is not directed towards
acquiring control of the market, and is, thus, allowed.
ISSUE C
It is submitted that Mr. Samesh Rippy does not have locus to challenge the order of the CCB dated
May 26, 2023 within the meaning of § 53B of the Act. Under § 53B an appeal to the appellate
tribunal can be preferred by any person aggrieved by an order, decision or direction. In the present
case, Mr. Rippy has challenged the approval given by CCB to the acquisition of Sierra by Novak.
Mr. Rippy does not have locus to challenge CCB’s approval because firstly, the phrase ‘any
person’ under § 53B must be construed narrowly. An order or direction under the Competition
Act cannot be challenged by any person who is in no manner concerned with the transaction in
question. Moreover, here it must be considered that Mr. Rippy is not a mere consumer, instead,
he is a majority shareholder of Bart, a dominant player in the OTT market. Secondly, in order to
meet the statutory requirement of locus standi the person must have suffered some harm that
peculiarly affects their legal interests. In the present case, the Sierra Acquisition does not affect
the legal interests of Mr. Rippy.
ISSUE D
It is submitted that the combination is not anti-competitive because firstly, the CCB has already
approved the combination of Novak and Sierra. The CCB considered the anti-competitive
concerns when approving the said merger. Thus, CCB has already given due clearance to the said
merger after considering all the relevant factors. Secondly, there is no significant impediment to
effective competition in the relevant market as even after the combination, Novak and Sierra are

xxiv
not in a dominant position in the relevant market. Thirdly, the combination does not violate the
factors listed in Section 20(4) of the Competition Act as the combination does not increase barriers
to entry in the relevant market and there exists significant countervailing buyer power in the
market even after the combination. Lastly, the combination leads to pro-competitive efficiencies.

xxv
WRITTEN SUBMISSIONS ON BEHALF OF THE APELLANT [WRITTEN ARGUMENTS]
WRITTEN ARGUMENTS
ISSUE A: WHETHER NOVAK IS IN VIOLATION OF SECTION 3 OF THE ACT
[¶ 1.] Novak, an OTT platform entered into various agreements with production houses. § 3(4) of
the Competition Act refers to vertical agreements where the enterprises operate at different levels
in the same production chain. 1 In the present case, Novak, production houses and artists are
enterprises under § 2(h). 2 In the Co-Production agreement, Novak and other production houses
operate at different levels of the same production chain i.e. production of films. Similarly, in the
Artist Agreement, there is a vertical relationship between Novak and the concerned actor, where
the former avails the services of the latter for shooting TV shows. Therefore, the agreements fall
within the ambit of § 3(4). Moreover, since the two agreements limit the supply of goods and
services, to some extent, they can be termed as exclusive distribution agreements under § 3(4)(c).3
[¶ 2.] However, as opposed to §3(3), vertical agreements under § 3(4) are not per se void.4 Such
agreements are treated more leniently than horizontal agreements. 5 It is a settled legal position
that agreements under § 3(4) can be rendered void under § 3(2) only if it causes or is likely to
cause AAEC.6 Moreover, exclusive distribution agreements need not necessarily be anti-
competitive.7 It is submitted that the agreements entered into by Novak do not cause anti-
1 The Competition Act, 2002. § 3(4), M/s ESYS Information Technologies Pvt. Ltd. v. Intel Corp.
& Ors, Case no. 48 of 2011 (CCI).
2 The Competition Act, 2002. § 3(4).
3 The Competition Act, 2002. § 3(4)(c).
4
Report of High level Committee on Competition Policy and Law (Raghavan Committee), ¶ 4.3.1
5
Mr Ramakant Kini and Dr L.H. Hiranandani Hospital, Powai, Mumbai, Case No. 39 of 2012
(CCI).
6 The Competition Act, 2002. § 3(4) and § 3(1), Jasper Infotech v. Kaff Appliances, Case no. 61
of 2014 (CCI).
7 Société Technique Minière v. Maschinenbau Ulm [1966] ECR 337
THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 1

competitive effects in the market because, firstly (I) the relevant market is not limited to films and
TV series on OTT platforms. Secondly (II) Novak does not have market power. Thirdly (III), the
agreements do not cause AAEC. Fourthly (IV), the pro-competitive effects of the agreement
outweigh its anti-competitive effects. Lastly (V), the agreement can be objectively justified.
[I.] THE RELEVANT MARKET IS NOT LIMITED TO FILMS AND TV SERIES ON OTT
PLATFORMS
[¶ 3.] Since § 3 refers to ‘relevant market,’ it is essential to delineate the relevant market to assess
the AAEC caused by the agreements under § 3(4). 8 The purpose of defining this market is to
analyse the competitive constraints faced by the undertakings participating in the concerned
market.9 The ‘relevant market’ 10 can be determined by examining the relevant geographic and
product markets.11 It is submitted that firstly [A], the relevant geographic market is the Union of
BinTin Land and secondly [B], the relevant product market for the Co-Production Agreement
encompasses films streamed and exhibited on all platforms, while for the Artist Agreement, the
market includes services provided by actors for filming of TV shows streamed on TV channels
and OTT platforms. Though the relevant markets are distinct, they are not independent of each
other. Therefore, it is important to assess the agreements in conjunction as their effect on the
market is intertwined.
A. The relevant geographic market is the Union of BinTin Land
[¶ 4.] The relevant geographic market under § 2(s) refers to an area of market where the conditions
of competition for the supply of goods or provisions of services or demand of goods or services
8
CCI v. Coordination Committee of Artists And Technicians of WB Films and Television and
Others AIR 2017 SC 1449.
9 Ibid, Hemant Sharma and Other v. All India Chess Federation, Case no. 79 of 2011(CCI)
10 Competition Act, § 2(r)
11 Id. At § 19(5)

are homogenous.12 The facts of the present case indicate that the condition throughout the Union
of BinTin Land are homogenous therefore the relevant geographic market is limited to the Union
of BinTin Land.
B. The relevant product market for the Co-Production Agreements and Artist Agreements is the
entirety of the films and TV series industry respectively.
[¶ 5.] Under § 2(t) the relevant product market is defined in terms of all those goods and
services that are interchangeable or substitutable due to their characteristics, price and intended
use.13 This market depends on various factors such as consumer preferences, technology etc. 14
It is submitted that the films and TV Series streamed on OTT Platforms are substitutable with
the films screened in multiplex theatres and TV series streamed via conglomerate networks.
This is because firstly [i], the characteristics of OTT platforms are similar to that of multiplex
theatres and satellite TV channels. Secondly [ii], the application of the SSNIP test suggests that
OTT platforms are substitutable by theatres and TV channels. Thirdly [iii], the end usage of
OTT platforms is similar to that of other streaming platforms.
i. Characteristics of OTT platforms are similar to that of multiplex theatres and satellite
TV channels
[¶ 6.] If two products or services have similar characteristics then they are likely to be substitutes
of each other.15 In assessing these similarities the preferences of the consumers is an important
consideration.16 In the current scenario, OTT platforms like Novak have begun streaming first-
12 Shri Avtar Singh Vs M/s. Ansal Township and Land Development Ltd., Sh. Pranav Ansal and
Sh. Anil Kumar. Case no. 03 of 2014 (CCI). United Brands v Commission Case 27/76 [1978] ECR
207
13
Competition Act 2002, § 2(t)
14 Atilano Jorge Padilla, The Role of Supply Side Substitution in the definition of the relevant
market in Merger Control (Neera 2001).

15 Saint Gobain Glass India Limited v Gujarat Gas Company Limited, Case no. 20 of 2013. (CCI)
16 Competition Act 2002, § 19(7)

run movies and producing original TV series, mirroring traditional market practices observed in
multiplexes and satellite channels. Consequently, from the perspective of end consumers, these
platforms are interchangeable. Moreover, considering Capsicum’s decision to enter into an
agreement with Novak instead of other multiplexes, it can be said that even the producers consider
these platforms to be interchangeable. 17
[¶ 7.] The substitutability of products can be determined based on government policies and
regulations. In All India Online Vendors Association v. Flipkart India Private Limited 18 the CCI
had considered government regulation such as the FDI policy in determining whether online retail
stores and online platforms lie in the same relevant market. In the present case, the Government
of BinTin Land has permitted 100% FDI in the media and entertainment sector without making a
distinction between OTT platforms and other traditional modes of streaming films and TV series. 19
OECD in its report held that the broadcast and video distribution of motion pictures were close
substitutes of theatrical distribution despite the former having the ‘comfort of house’ factor. 20
Instead, here the revenue potential of the substitute was considered. 21 In the present case, the
revenue potential of OTT platforms is closer to that of theatres due to the streaming of first-run
films. Therefore, the fact that OTT platforms provide the comfort of home and other advantages
is irrelevant. Hence, notwithstanding the technological innovations introduced by OTT platforms,
they remain substitutable by traditional platforms such as multiplexes and satellite channels.
17 Facts-on-record, ¶ 20
18
All India Online Vendors Association v. Flipkart India Private Limited, Case no. 20 of 2018
(CCI)
20 Organisation for Economic Co-Operation and Development, ‘Competition Policy and a
Changing Broadcast Industry’ (1993) pp.95.

21 ibid

ii. Applying the SSNIP test
[¶ 8.] The SSNIP test is used to highlight the relevant product market. 22 The test determines if two
products lie in the same market based on small but significant and non-transitory changes in
prices.23 The test assesses whether a customer would shift to another product when the price of
the product in question is hypothetically increased by 5-10%.24
[¶ 9.] In the present fact scenario, Novak had increased its subscription fee by 10% which resulted
in the non-renewal of the subscription by many of its existing subscribers. 25 Therefore, a small
but significant non-transitory increase in prices resulted in a loss of market share of Novak. Hence,
the application of the SSNIP test suggests that OTT platforms and other traditional modes of
streaming lie in the same relevant market.
iii. The end usage of OTT platforms is similar to that of streaming other platforms.
[¶ 10.] Along with the characteristics of the product, its end usage is an important factor in
delineating the relevant product market. 26 Mere technological advancements may not result in
different products.
[¶ 11.] In Sonam Sharma v. Apple27 the CCI refused to distinguish the relevant market based on
different technological features. Moreover, in Ashish Ahuja v. Snapdeal28 it was held that the
offline and online markets for shopping products were merely different channels of distribution
and did not denote two distinct product markets. Similarly, OTT platforms such as Novak merely
22 European Commission, ‘Notice on the Definition of the Relevant Market for the Purposes of
[EU] Competition Law’, OJ C-372/5 (1997), Hugin Kassaregister AB v. Commission 22/78
[1979] ECR 1896, Belaire Owners Association v. DLF Ltd. Case no. 19 of 2010 (CCI)
23 Richard Whish and David Bailey, C OMPETITION LAW, (OUP 7th Edn, 2008) p.31.
24
MCX Stock Exchange Ltd and Ors v. NSE of India, Case no. 13 of 2009 (CCI).
25
Facts-on-record, ¶ 34.
26 Competition Act of 2002, § 19(7), M/s Atos Worldline India Pvt Ltd. v. M/s Verifone India Sales
Pvt. Ltd. Case no. 56 of 2012 (CCI).

27 Sonam Sharma v. Apple, Case no. 24 of 2011 (CCI).
28 Ashish Ahuja v. Snapdeal, Case no. 17 of 2014 (CCI).

provide novel technological modes of distribution of films and TV series however the relevant
product market remains the same. The production houses still have the option to produce other
movies and TV shows and screen them in theatres and TV channels. Therefore, the relevant
market cannot be defined narrowly and be restricted to OTT platforms.
[II.] NOVAK HAS NO MARKET POWER
[¶ 12.] In assessing vertical restraints under § 3(4), market power is an important factor that must
be considered.29 Vertical agreements are void if the parties entering into such agreements have
market power.30 Therefore, such agreements can be subjected to investigation only when the
contracting parties have market power. 31
[¶ 13.] The market power of an enterprise depends on the enterprise’s market share. Usually, if
neither of the contracting parties has a market share exceeding 30% then the vertical agreement is
not deemed as anti-competitive.32 In Automobiles Dealers Association v. Global Automobiles
Limited and Anr 33 CCI refused to intervene in a case involving vertical restraint where the parties
had a market share less than the threshold of 30%. Therefore, if the market share of the enterprise
is minuscule then the vertical agreements are not void under § 3(2).34
[¶ 14.] In the present case, the market share of Novak Studios LLP in the OTT platforms market
is 25% which is below the given threshold. 35 Further, the majority market share of 40% lies with
29 Accessories World Car Private Limited v. Sony India Pvt. Ltd, Case no. 3 of 2020 (CCI).
30 Vikas Kathuria, ‘Vertical Restraints under Indian Competition Law: Whither Law and
Economics’ (2022), 10(1), Journal of Antitrust Enforcement, pp. 194–215, Tamil Nadu Consumer
Products v. Fangs Technology Private Ltd, Case no. 15 of 2018 (CCI)
31 Frank H. Easterbrook, Vertical Agreements and the Rule of Reason, 53 Antitrust Law Journal
(1984)
32
EU Guidelines on vertical restraints [2010] OJ C-130/1
33 Automobiles Dealers Association v. Global Automobiles Limited and Anr Case No. 33 of 2011
(CCI)
34 Prime Mag Subscription Services v. Wiley India Pvt. Ltd., Case No. 07 of 2016 (CCI)
35 Facts-on-record, Annexure 1

Bart leaving Novak with negligible market power. 36 Additionally, since the relevant market for
the co-production and artist agreement is not limited to only OTT platforms, the market share of
Novak in the entire film and TV series industry is less than 25%. 37 The film market is dominated
by large exhibitors who own multiple cinema halls. Similarly, in the TV market, most of the
market power lies with large conglomerate networks.38 Moreover, Novak has minimal viewer
traffic in the genres of romance, horror, comedy and demand (focused on BinTin Land). 39
Therefore, it cannot be said that Novak has market power in the relevant market.
[III] THE CO-PRODUCTION AGREEMENTS AND ARTIST AGREEMENTS DO NOT CAUSE
AAEC
[¶ 15] Vertical agreements under § 3(4) are subjected to the rule of reason approach to determine
their anti-competitiveness.40 This rule requires an examination of the nature of the competitive
restraint and its actual or potential effects.41 § 19(3) lists down factors that must be considered in
assessing if an agreement under § 3 causes or is likely to cause AAEC. 42 It is submitted that the
Co-Production and Artist Agreements do not cause AAEC as firstly [A], the agreements do not
increase entry barriers. Secondly [B], the agreement does not lead to foreclosure of the market.
A. The Agreements do not increase entry barriers
[¶ 16] Entry barriers refer to costs incurred by new entrants for entering into the market. 43 It is a
36 ibid
37 Memorandum, ¶ [1][B]
40
Tata Engineering and Locomotive Co. Ltd v. The Registrar of Restrictive Trade Agreement, AIR
1977 SC 973; Eros International Media Limited v. Central Circuit Cine Association, Case No. 56
of 2010 (CCI)
41 Mahindra & Mahindra v. UOI (1979) 2 SCC 529.
42 The Competition Act, 2002, § 19(3).
43 Office of Fair Trading, ‘Assessment of Market Power’, OFT-415 (2004)

factor that must be considered in determining the validity of an agreement under § 3(4). 44 The
facts on record indicate that around 8000 films and TV series are produced yearly in BinTin
Land.45 Meanwhile, Novak has entered into an exclusive deal with production houses for the
production of only 4 movies over a period of 3 years.46 This constitutes a mere fraction of the
number of films and TV series produced in BinTin Land. This also implies that other platforms
and exhibitors can enter into agreements with various production houses for streaming movies.
Therefore, there are no entry barriers raised by the use of the Co-Production Agreement. In fact,
its use has incentivised market entry of small producers who were merely fringe players in the
earlier traditional setup. 47
[¶ 17] Additionally, the Artist agreement binds the artist only till the completion of shooting for a
particular show.48 This is akin to the standard market practice followed by production houses of
signing a contract with actors for a period of 2 years to make movies. 49 Moreover, the artists can
work with other producers during the conflict-free windows of at least 6 months. 50 Therefore,
these agreements do not raise entry barriers in any manner
B. The agreement does not lead to foreclosure of the market
[¶ 18] § 19(3) lists foreclosure of market as a relevant factor in assessing § 3(4) vertical restraints. 51
An agreement is set to foreclose a market when it affects the ability of the competitors to enter the
market or increase their share in the market. 52 The test of foreclosure inquires whether there are
real or concrete possibilities for a new rival to establish itself in the market. 53

48
Facts-on-record, ¶ 27
49
51 Competition Act 2002, § 19(3)(c)
52 Peter Roth QC, Bellamy & Child: European Union of Law Competition 497 (OUP 2018)
53 Maxima Latvija v. Konkurences Padome Case No. 345 of 2014 (ECJ)

[¶ 19] Here it is important to consider the market power exercised by the enterprises and the
duration of the exclusive agreements.54 If the agreement does not last for a long duration then no
contravention of § 3(4) is made out. 55 In the present case, the duration of the Co-production
Agreement entered into by Novak is merely for a period of 3 years. The Artist agreement lasts for
a reasonable period till the completion of the shooting of the TV series. Therefore, considering
that the duration of the agreements is not very long, there is no foreclosure of market. Additionally,
since the domination of Novak LLP extends to only a few genres, artists can tie up with production
houses that are producing movies in other genres. Therefore, there is no market foreclosure.
[IV] THE PRO-COMPETITIVE EFFECTS OUTWEIGH ITS ANTI-COMPETITIVE EFFECTS
[¶ 20.] Vertical agreements are not held to be ‘per se void’ because they can cause pro-competitive
effects.56 Even if an agreement is said to cause AAEC, an enterprise can justify its validity by
proving that the agreement’s pro-competitive effects outweigh its anti-competitive effects.57 This
balancing of the pro-competitive and anti-competitive effects is incorporated under a rule of
reason framework.58 Under this framework, even exclusive agreements can have pro-competitive
effects.59
[¶ 21.] Consequently, it is submitted that the pro-competitive effects outweigh the anti-
competitive effects because firstly [A], the agreement resulted in accrual of benefits by the
consumers. Secondly [B], it improves the production of goods or distribution of goods or provision
of services.
54
Guidelines on vertical restraints (n 31) p.88.
55
Sonam Sharma (n 22)
56 S M Duggar, S M Duggar’s Guide to Competition Act, 2002 261 (LexisNexis 2017).
58 Kathuria (n 25), Tata Engineering (n 41) ¶ 693.
59 Shri Ghanshyam Das Vij v M/s Bajaj Corporation Limited and Ors, Case No. 68 of 2013 (CCI).

A. The agreement resulted in the accrual of benefits by the consumers
[¶ 22.] § 19(3) lists accrual of benefits to consumers as a relevant factor in determining AAEC
caused by agreements under § 3. The use of exclusive distribution agreements leads to a reduction
in logistical and transactional costs due to economies of scale which allows a notable reduction in
prices offered to the end consumers. 60 In the present case, the use of Co-Production Agreements
allows small producers to produce movies thereby increasing the supply of movies which along
with economies of scale reduces production costs thereby incentivizing a decrease in prices. Such
agreements dilute the concentration of market power among big production houses and exhibitors.
[¶ 23.] Generally, demand in the film market is unpredictable due to erratic changes in consumer
preferences.61 However, due to the network effects of digital intermediaries such as OTT
platforms, content can be curated according to the specific preferences of consumer groups. 62 This
allows producers to build a direct relationship with the end consumer thereby leading to economic
efficiencies.63 In the present factual matrix, the use of Co-Production agreements has allowed
Novak to establish and facilitate a direct relationship between producers and consumers. This is
evidenced by Novak’s gradual experimentation with its genres based on consumer preferences.64
This allows consumers to avail themselves of an extensive selection of films and TV shows from
the comforts of their house, a benefit of notable significance in the backdrop of the Novid-14
pandemic.
[¶ 24.] The imposition of exclusive but reasonable restrictions on actors through Artist
60 Rossella Incardona, ‘Distribution Agreements Under EC Competition Law’ (2005)

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1185371>
61 Competition Commission of India, ‘Market Study on the Film Distribution Chain in India’
(2022) < https://www.cci.gov.in/images/whatsnew/en/market-study-on-the-film-distribution-

chain-in-india1665747371.pdf >
62
David S. Evans (n 38) pp.17.
63 Evens, Tom (2014): Clash of TV platforms: How broadcasters and distributors build platform
leadership, 25th European Regional Conference of the International Telecommunications Society

(ITS)
64 Facts-on-record, ¶ 29.

Agreements allows Novak to protect the interests and expectations of the audience regarding the
consistent portrayal of a particular character by the same actor. 65 Therefore, the use of both
agreements results in the accrual of consumer benefits.
B. It improves the production of goods or provision of services
[¶ 25.] Improvement in production or distribution is another positive factor listed under § 19(3).66
Usually, agreements premised on collaboration between producers and intermediaries allow
economies of scale by coordinating consumer demand.67 In the present case, such a collaboration
between film producers and OTT platforms has been facilitated through the use of Co-Production
Agreements. Moreover, due to the contribution from Novak’s side, such agreements allow Small
Budget Producers to produce more movies and thereby accrue additional revenue. 68 The
agreement also dilutes the dependency on multiplexes and therefore does not allow them to
unilaterally impose unconscionable revenue-sharing agreements with young and independent
producers.69 Moreover, clause 10 of the Co-Production Agreement incentivizes the screening of
films containing 3D and 4D technology in theatres. 70 Therefore, it is submitted that the use of such
agreements has not restricted consumers from availing of more technologically advanced modes
of distribution in the market.
[¶ 26.] Earlier in the traditional setup, multiplexes would miscalculate the revenue generated from
ticket sales thereby portraying the producer’s actual income to be lower than the projected
income.71 Moreover, this lack of transparency prevails in the TV broadcasting sector where there
is an underreporting of TV subscribers. 72 Generally, the use of online intermediaries inculcates
66 The Competition Act, 2002, § 19(3)
67
David Evans (n 38), Ghanshyam Das Vij (n 51)
68
72 Competition Commission of India (n 60)

price transparency which thereby incentivises competitive practices in the market. 73 In the present
case, the terms in Novak’s Co-Production agreement ensure transparency by determining the
revenue share of producers based on the number of clicks generated. 74
[¶ 27.] Similarly, the Artist Agreements improve the conditions prevailing in the TV series market
by safeguarding the interests of the end-consumers.75 Therefore, the use of such agreements has
improved the production of goods or distribution of goods or provision of services.
[V.] THE AGREEMENT CAN BE OBJECTIVELY JUSTIFIED
[¶ 28.] An exclusive distribution agreement can be objectively justified if it results in economic
efficiencies.76 It is submitted that the Co-Production Agreements and Artist Agreements entered
into by Novak can be objectively justified because they reasonably protect the commercial
interests of the enterprise
A. They reasonably protect the commercial interests of the enterprise
[¶ 29.] The use of restrictive agreements to secure an enterprise’s commercial interest can be
deemed legitimate if they are objectively justified.77 In the present case, the Co-Production
Agreement entered into by Novak contains a clause which confers on it “the right to vet the script
and choose the lead actors.”78 While such clauses are restrictive in nature, they allow
intermediaries to control the quality of films produced under the contract thereby maximising the
joint revenue of the producers and intermediaries. 79
73 Competition Commission of India, ‘Market Study on E-Commerce in India’ (2020) <

https://www.cci.gov.in/economics-research/market-studies/details/18/6 >
75
Memorandum, ¶ 22
76
Ghanshyam Das Vij (n 51) ¶ 75, Richard Whish (n 18) p.212.
77 FX Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Ltd, Case No. 36 of 2014 (CCI),
United Brands (n 12)

79 OECD (n 19) p117.

[¶ 30.] Another clause of the agreement creates a revenue-sharing agreement where the revenue
of the producer is contingent on the number of clicks generated on the OTT platform. Owing to
the technological components, the number of clicks is calculated accurately, unlike in
multiplexes.80 Therefore, this clause is objectively justified. Moreover, such revenue-sharing
agreements serve as incentives for stakeholders to refrain from anti-competitive practices that may
harm the other party.81
[¶ 31.] The Artist Agreement contains a clause obligating an actor to exclusively work with Novak
during the continuance of the TV shows.82 This clause is justified since it allows actors to work
with other producers during conflict-free windows.83 In Film Purchases by German Televisions
Stations,84 an agreement conferring exclusive licensing rights was held valid due to the presence
of ‘window periods’ where the enterprise was allowed to deal with third parties. Similarly, the
non-disclosure clause under the Artist Agreement is justified as it protects the commercial
interests of Novak. 85 The use of such clauses helps preserve the know-how of an enterprise and is
therefore legitimate.86
ISSUE B: WHETHER NOVAK IS IN VIOLATION OF SECTION 4 OF THE
COMPETITION ACT
[¶ 32.] Novak has sought to expand its business operations since the rise of OTTs during the
81 Seung-Hyeok Baek, Min-Gown Park and Jin-Hua Zang, ‘An Exploratory Study on the Benefit
Sharing of Broadcasting Content Industry’ in Computer and Science Information (Roger Lee eds,
Springer 2019) p.220.
82
84 Film Purchases by German Televisions Stations OJ [1989] L 284/36
86 Pronuptia de Paris GmbH v Schillgalis, Case No. 161 of 1984 (ECR)

Novid-14 era.87 In its efforts to expand its range and services, it has entered into numerous
arrangements. The OP has sought to label the efforts of Novak as a violation of Section 4 of the
Competition Act, 2002 which provides for the prohibition of abuse of dominance by a dominant
enterprise in the relevant market. 88 Therefore, it is humbly submitted that the actions of Novak do
not constitute a violation of Section 4 because firstly, [I] The relevant market is not limited to
films and TV series on OTT platforms. Secondly, [II] Novak does not have a dominant position
in the relevant market and thirdly, [III] Novak has not abused its dominance under section 4 of
the Competition Act.
[I] THE RELEVANT MARKET IS NOT LIMITED TO FILMS AND TV SERIES ON OTT
PLATFORMS
89
[¶ 33.] The relevant market in the present case is the films and TV series market.
[II] NOVAK DOES NOT HAVE A DOMINANT POSITION IN THE RELEVANT MARKET
[¶ 34.] Section 4 of the Competition Act defines the dominant position as a position of strength
that enables the enterprise to operate independently of the competitive forces in the relevant
market or to affect its competitors, consumers or the relevant market in its favour. 90 To assess this,
the Commission assesses the position of the dominant enterprise using the factors mentioned in
Section 19(4) including, inter alia, the market share of the entity, its size and resources, size and
importance of competitors. It is humbly submitted that based on these factors, Novak does not
have a dominant position in the market since they preclude it from operating independently or
affecting its competitors or consumers in the relevant market.
A. Novak cannot Operate Independently in the Relevant Market
[¶ 35.] One of the requirements for an entity to be dominant in the relevant market is its ability to
87 Facts-on-record ¶10,11.
88 Competition Act, section 4.
89 See memorandum ¶2.
90 ibid

operate independently of its competitors.91 It is submitted that Novak does not have that position
in the market due to its low market share and presence of other competitors.
i. The Market Share of Novak is Inadequate to make it a Dominant Entity
[¶ 36.] Market share is one criterion mentioned in Section 19(4) for the assessment of dominance.
It is one of the foremost values used in assessing market power and is used as a screening tool for
negating the possibility of dominance. 92 As one of the key factors in the assessment of dominance,
courts have held that it is implausible that any entity with a low market share will be in a dominant
position in the market.93 Importantly, the European Union also has a threshold of 40% below
which entities are not assessed for dominance. The EU Commission has declared only one entity
to be dominant below the threshold of 40% in the case of British Airways.94 The share of the
dominant entity in this case was 39.7%. Principally, thus, the enterprise must have a high market
share in the relevant market for it to be dominant.
[¶ 37.] It is submitted that Novak, with a market share of 25% in the OTT market, has an even
lower presence in the films and TV series market which is characterised by the presence of large
distributors and exhibitors with numerous multiplex cinemas.95 The market also has the presence
of large conglomerates. 96 Further, in the market of films and TV series, Novak only has a
namesake presence in genres such as romance, horror, reality shows, and science fiction. 97 It must
also be noted that Bart, another competitor in the same market, has a higher market share than
Novak, implying that there is effective competition. Thus, the market share of Novak strongly
suggests that it is not a dominant entity in the relevant market.
91 Competition Act, section 4, explanation.

92
Ramachandran v. JSW Cements Limited CCI Case No. 76/2017.
93
Vilakshan Kumar Yadav v. ANI Technologies Private Limited CCI Case No. 21/2016.
94 Virgin/British Airways OJ [2000] L 30/1.
95 Facts-on-record ¶9
96 ibid.
97 Facts-on-record ¶ 13,14.

ii. Size and Resources of Novak, the Size and Importance of the Competitors and the
Economic Power of Novak including Commercial Advantages
[¶ 38.] The size and resources of the entity under scrutiny become important factors when
assessing its dominance. The CCI has relied upon it in numerous cases to determine the dominance
of any entity. In one case, an enterprise with a market share of 25% was rejected as a dominant
entity because other players in the market had significant shares. 98 It is submitted that the presence
of Bart, with a market share of 40%, Velar with 20% market share, and other big exhibitors and
production houses implies the presence of significant players in the relevant market.
[¶ 39.] In the present case, Novak is the only independent OTT platform in the country without
any large satellite television broadcasting conglomerate behind it. 99 Moreover, it must also be
noted that Novak, being solely a streaming platform, only has the streaming platform as its major
source of revenue.100 On the other hand, other players in the market have a multitude of operations
that also helped them quickly enter the OTT market during its rise in 2021. 101 Furthermore, in the
film and TV series market, there has been a historical dominance enjoyed by large production
houses implying their commercial dominance. Thus, Novak does not occupy a dominant position
in the market due to its relatively smaller size and resources.
[¶ 40.] Not only the size of entities, the films and TV series market is also characterised by the
presence of multiple important players. In OTT media, Bart, Velar and several small, regional and
innovative players indicate the presence of effective competition.102 Moreover, the rise of
platforms such as Velar, Mickey, and MFTV also highlights the lack of barriers imposing
production efficiency costs in the market. It must also be noted that Novak only has a high
audience in a few genres, while in genres like comedy, romance, local drama, horror, and science
98
R.V. Ramgopal v. Shri Ram Transport Finance Co. Ltd., 2012 SCC OnLine CCI 167
99 Facts-on-record ¶33.
100 ibid.
102 ibid.

fiction, the other OTT services dominate. 103 Furthermore, there are also numerous production
houses including Rambo, Rocky, and Swathe which dominate the film and TV series market. 104
Thus, it is submitted, that there are numerous other significantly important players in the relevant
market which ensure the presence of effective competition.
B. Novak cannot affect its competitors, consumers, and the relevant market in its favour
[¶ 41.] Another way in which the dominance of an entity is assessed is its ability to affect its
competitors, consumers and the relevant market in its favour.105 It is submitted that Novak does
not have adequate market power to affect its competitors, consumers or the relevant market in its
favour due to the market structure of the films and TV series market, the absence of consumer
dependence on Novak and the absence of strategic entry barriers.
[¶ 42.] As shown above, the relevant market is characterised by the presence of numerous regional
and national level players who specialize in different genres of movies and also have substantial
market shares. Such presence of significant players in the market has been used by the CCI to
reject the dominance of entities since they keep the enterprise in check for its actions. 106 Thus,
Novak cannot be said to affect its competitors due to their substantial market power.
[¶ 43.] As already shown above, the consumers in the film and TV series market cannot thus be
said to be dependent on Novak.
[¶ 44.] A strategic entry barrier may be defined as artificial costs that newer entrants have to face
due to the actions of the incumbents. 107 It is submitted that Novak has not indulged in the creation
of these artificial barriers. The co-production agreement entered into with numerous production
houses does not exclusively bind them to only produce movies with Novak. 108 This means that
these production houses can enter into similar arrangements with other platforms as well.

104
Facts-on-record ¶7.
105
Competiton Act, section 4.
106 Ramgopal (n 106).
107 S Bishop and M Walker (1999), ‘The Economics of EC Competition Law: Concepts,
Application and Measurement’ (2007) (3rd Edition, London, Sweet and Maxwell) 189.

[¶ 45.] Neither do the agreements bind them to never release these movies on other platforms. 109
This stipulation of the agreement follows a commercial logic of recovery of investment given that
filmmaking is a risky investment. Moreover, the agreements also carve the exception for movies
requiring 3D technologies to be presented in theatres and then shown on Novak’s platform. 110
[¶ 46.] It should also be noted here that by providing for large conflict-free window periods in
artist agreements,111 Novak has also sought to provide other players with the access to actors while
they are not busy with shooting for Novak’s show. Ensuring the availability of actors during the
shooting of such long-term shows also has an important commercial goal since the viewers come
to associate particular actors with the characters in the movies and shows and any perturbance
with that affects the ratings of the show impacting the commercial viability of the entire project.
[¶ 47.] Thus, it is submitted that Novak does not occupy a dominant position in the relevant market
due to the non-fulfilment of either of the requirements under the Act.
[III] NOVAK HAS NOT ABUSED ITS DOMINANCE UNDER SECTION 4 OF THE
COMPETITION ACT
[¶ 48.] A determination of non-dominance precludes an analysis of abuse of dominance under the
Competition Act. However, even if the Hon’ble Court finds that Novak is in a position of
dominance, it is submitted, that such position has not been abused by Novak because firstly, (a) it
has not denied market access to any enterprise and secondly, (b) it has not imposed vertical
restraints on any enterprise.
A. Novak has not denied market access to any enterprise
[¶ 49.] Denial of market access by the conduct of a dominant entity is covered by Section 4(2)(c)
of the Competition Act.112 It is submitted that the actions of Novak, by indulging in co-production
agreements and artist agreements have not caused any denial of market access to any enterprise.
109 ibid.
110 ibid.
112 Competition Act, section 4(2)(c).

This is because the test for denial of market access by withholding essential facilities is not
satisfied in the present case.
i. There is no denial of essential facilities:
[¶ 50.] It is submitted Novak has not engaged in denial of market access because the test laid out
in Shamsher Kataria, which settles the law on the issue of market denial in India, does not stand
fulfilled.113 This is because firstly, Novak does not control the facilities, namely the film and TV
series content and actors. Secondly, the competing enterprises can reproduce the facility, thirdly,
Novak has not denied access to these facilities and fourthly, Novak cannot feasibly provide access
to these facilities.
[¶ 51.] Novak does not control the film and TV series content because of two reasons. Firstly, the
co-production agreements entered into by Novak do not impose obligations on the production
houses to only make movies with Novak. 114 This means that these production houses can enter
into different arrangements with other market players to carry out different projects. It is submitted
that having these options in the agreements, Novak cannot be said to exercise control over the
film and movie content. Secondly, Novak has entered into an exclusive agreement with Capsicum,
which is not a significant production house like Rambo, Rocky, or Swathe.115 There is nothing to
suggest that Novak has control over a substantial chunk of the production market by having
arrangements with the major production houses. Based on these, it is submitted that Novak does
not control the essential facilities in the market.
[¶ 52.] In the context of artist agreements, it must be noted that the logic of the artist agreements
is primarily to ensure the availability of the artists to serve the needs of the consumers. 116 By
incorporating clauses requiring the availability of actors during shooting, Novak could not be said
to control the upstream market since these artists can also perform in other shows during the
113 In re: Shamsher Kataria v. Honda Siel Cars India Ltd & Others Case No. 03/2011.

conflict-free period. It is submitted that the services of actors in the shooting of film and TV series
content constitute a rivalrous market and, hence, some excludability is bound to happen, especially
during the shooting of a show. Moreover, such non-compete artist agreements involving conflict-
free window periods for the actors have also been upheld previously. 117 Thus, it is submitted that
Novak cannot be said to control the essential facilities for the film and TV series market.
[¶ 53.] As shown above, even though movies and TV series are not perfectly substitutable goods,
consumers still switch between movies based on extraneous factors indicating some
substitutability. Moreover, the production of movies and TV shows has been prevalent and
thriving in BinTin Land since the 2000s. 118 Even the Government has also sought to favour artists
including the producers and actors. 119 Logically, thus, producing movies is not an enormously
infeasible task in the country, particularly for production houses. Therefore, it is submitted that
movies are reproducible content and, thus, the second prong of the Kataria test also stands
satisfied.
[¶ 54.] In terms of the artist agreements, it is conceded that while the reproduction of artists, along
with the fame they enjoy, is a difficult task, the restriction imposed on them by Novak is logically
and commercially justified.
[¶ 55.] In the third prong of the EF test, it is submitted that Novak has not denied access to other
players from using its co-produced films. Instead, it has imposed a period equal to the co-
production agreement wherein the movies will only be shown on its platform. 120 Beyond such a
period, other firms may access these movies to showcase them on their platforms. On the other
hand, the artist agreements only impose objectively justified restrictions on the actors for specified
periods. Such restriction cannot be said to deny market access as it is otherwise infeasible for
Novak which has to ensure timely delivery of content.
117 Film Purchases by German Televisions Stations OJ [1989] L 284/36.


[¶ 56.] Finally, it is also submitted that Novak cannot provide access to the film and TV series
content and actors for the period of shooting because it impedes with the shooting of the content
which may transform into a delay in delivery. This impacts the expectations of the consumers and
also tarnishes Novak’s image. Such repercussions may also translate into commercial harm to
Novak.
[¶ 57.] Moreover, multiple work arrangements of actors also increase the transaction costs on
Novak which has to manage its shooting process based on numerous factors. It is submitted that
by reducing these transaction costs, the Artist Agreement brings in production efficiency for
Novak, along with ensuring consumer welfare. Thus, if the exclusive artist agreement is removed
by Novak, the risk exposure will rise. Moreover, it must also be noted, that long-term agreements
are also made to protect the commercial investment made into these projects because re-casting
of actors to perform the same role can lead to a reduction in viewers, as is also seen in BinTin
Land where people want the same actors to perform a specific character.
[¶ 58.] Similarly, the co-production agreements, by providing for exclusive streaming of film and
TV series content, for specified periods, are also objectively justified and their removal will be
infeasible for Novak. To understand this, it is important to note that there are three risks inherent
in the film and TV series market, namely- the risk of non-rivalrous and partially-excludable nature
of films imposes huge risks on the producers because they cannot totally prevent the leakage of
the product, the ease of piracy and its prevalence, and the unpredictability of demand. 121
[¶ 59.] As a result, it is an industry practice to undertake steps towards recoupment of investment
and mitigation of risk. 122 It is submitted that the co-production agreements with exclusive
distribution clauses for a specified period ensure that the wide availability of the film and TV
series content, which makes it more vulnerable to practices such as piracy, is curbed for a period
until the investment is recouped. Moreover, Novak’s access to its consumer data can predict, with
121 Competition Commission of India, ‘Market Study on E-Commerce in India’ (2020) <
https://www.cci.gov.in/economics-research/market-studies/details/18/6 >
122 Ibid.

some certainty, the success or failure of a movie or TV series. However, if the same movie is
released in the broader market for which Novak does not have adequate data, the risks of failure
become even higher. As a result, Novak may suffer from significant monetary losses. Thus, it is
submitted that the actions of Novak have a rational justification, and it is infeasible for it to do
away with these measures.
B. Novak has not imposed illegal vertical restraints
[¶ 60.] Vertical integration refers to a practice where activities at different levels of the value chain
are carried out by the same enterprise. 123 It plays an important role by allowing firms to reduce
their transaction costs by engaging with the upstream market. 124 However, it is submitted that
vertical integration is not, per se, illegal.125 A vertically integrated enterprise is only held liable
when the integration was done to acquire control over a market segment to suppress the
competition.126
[¶ 61.] It is submitted that Novak has not engaged in any exercise aimed towards acquiring control
over the market. The co-production agreements ensure efficiency of production and availability
and continuity of content- all of which are significant for an OTT platform. Moreover, it is also
submitted that Novak is a relatively smaller market player in the relevant market compared to
much bigger players such as Bart, Rambo and Rocky, and its actions of entering into co-
production agreements with smaller entities such as capsicum cannot be coloured as attempts
towards acquiring substantial control over the market.
[¶ 62.] Furthermore, Novak cannot be said to have aimed towards acquiring control over the film
and TV series content market because of its consistent efforts towards harmonizing the interests
of all the stakeholders, including the customers and other market players. Initially, Novak had a
long-term co-production agreement, but the term was reduced to three years, which is somewhat
123 Bishop and Walker (n 117) 189.

124 Michelin v. Commission [1983] ECR 3461 ¶58.
125 USA v. Paramount Pictures 334 U.S. 131 (1948)
126 Ibid.

similar to the previous market practice of two years, owing to the dissatisfaction of the production
houses.127 Moreover, an alteration to the revenue clause was also made to assuage the discontent
of production houses party to the co-production agreements.
[¶ 63.] In the artist agreements, Novak is bound to deliver timely and quality content to its viewers
and, as a result, has entered into the contract that limits the availability of actors to other producers
during the period of shooting of the TV series. However, Novak does not put any restraint on the
actors to work for other producers in the conflict-free period. This also highlights the attempts of
Novak to ameliorate the concerns of actors. Moreover, such agreements have been upheld in the
past as legal because they balance the commercial interests of enterprises with competition norms.
[¶ 64.] It is submitted that these windows of availability ensure that even during the period of
agreement, actors can work on multiple platforms to further their career. It is submitted that Novak
is completely cognizant of the public policy of BinTin Land which supports actors, and, thus, tries
to ensure that their creative expression is not stifled. However, at the same time, it is pertinent to
understand that Novak has access to its consumer data which provides it better estimates about
which actor to engage for a successful project. Thus, it has sought to include arrangements on
having a say in the choice of lead actors. Such a clause provides benefits to all the stakeholders.
[¶ 65.] Thus, it is submitted that Novak has not engaged in anti-competitive conduct aimed at
acquiring control over the upstream and downstream market in order to acquire control over a
market segment by quelling competition. Therefore, the vertical restraints imposed by Novak are
entirely legal and it cannot be said to have engaged in abusive conduct.
ISSUE C: WHETHER MR. SAMESH RIPPY HAS LOCUS TO CHALLENGE THE ORDER
OF THE CCB WITHIN THE MEANING OF SECTION 53B OF THE COMPETITION ACT,
2002

[¶ 66.] In order to expand the genres of films and TV shows streamed on it platforms and compete
effectively, Novak LLP strategically acquired some equity shareholding in Sierra, an OTT
platform. Due to the absence of any AAEC, this acquisition was approved by the CCB.128
However, Mr. Samesh Rippy, a majority shareholder of Bart, has challenged the approval given
to the Sierra Acquisition by the CCB under § 53B to the BCLT. 129 Under § 53B(1) an appeal to
the appellate tribunal can be filed only by an enterprise or any person who has been aggrieved by
any direction or order by the CCI.130 In consequence, it is submitted that Mr. Samesh Rippy has
no locus standi to challenge CCB’s approval under § 53B because firstly [I], the phrase ‘any
person’ under § 53B must be construed narrowly and secondly [II], The Sierra Acquisition does
not harm Mr. Samesh’s legal interests.
[I]. THE PHRASE ‘ANY PERSON’ UNDER § 53B MUST BE CONSTRUED NARROWLY
[¶ 67.] Only a person aggrieved by a direction or order is entitled to appeal the § 53B. It is an
established legal principle that an appeal under the Competition Act cannot be filed by a person
who has no interest or concern with the transaction or dispute at hand. 131 The phrase ‘aggrieved
person’ has been narrowly interpreted by the Supreme Court to refer to persons who have suffered
legal harm.132
[¶ 68.] Under the competition law regime in the USA, there is a requirement of “direct antitrust
injury” where the onus is on the person alleging misconduct to prove that the injury they have
suffered is legal in nature and specifically falls within the ambit of antitrust law.133 Therefore, the
phrase ‘any person’ under § 53B must be construed narrowly. In Samir Agarwal v. Competition
128
Facts-on-record, ¶ 35.
129
ibid
130 Competition Act 2002, § 53B(1)
131 Jeetender Gupta v. Competition Commission of India, Appeal No. 30 of 2014 (COMPAT)
132 Jasbhai Motibhai Desai v. Roshan Kumar AIR 1976 SC 578
133 Illinois Brick Co. v Illinois [1977] 97 S.Ct.2061.

Commission of India,134 this phrase was interpreted widely to protect the interests of consumers.
Moreover, public interest is pivotal component in deciding the locus standi of a person in the
context of the Competition Act. 135 However, in the present case, Mr. Samesh Rippy is not merely
a consumer, he is a majority shareholder of Bart, a dominant OTT platform with a 40% share in
the market.136 Therefore, Mr. Samesh Rippy does not have any locus standi to challenge CCB’s
approval.
[II]. THE SIERRA ACQUISITION DOES NOT HARM MR. SAMESH’S LEGAL INTERESTS
[¶ 69.] In order to qualify as an aggrieved person under § 53B the person in question must have
suffered some harm that affects their legal interests.137 Moreover, the mere fact that the legal
position of the concerned person has changed is not sufficient to establish locus standi.138 The
decision must affect them directly and individually.139 This effect must be peculiar to the
concerned person, differentiating them from all other persons.140
[¶ 70.] In the present case Mr. Samesh Rippy has not suffered any legal injury and the approval
given to the Sierra Acquisition by CCB does not affect him directly or individually. In Jasbhai
Motibhai Desai v. Roshan Kumar, the setting up of a rival cinema house was dismissed as a
ground for constituting locus standi.141 Therefore, the mere fact that this acquisition may harm the
economic interests of Mr. Samesh Rippy is not sufficient to meet the statutory requirement of
locus standi under § 53B.
134 Samir Agarwal v. Competition Commission of India (2021) 3 SCC 136

135 Competition Commission of India (General) Regulations 2009, Regulation 25.
136 Facts-on-record, Annexure 1
137 S M Duggar, S M Duggar’s Guide to Competition Act, 2002 261 (LexisNexis 2017)
138
Association belge des consommateurs test v. European Commission, [2011] ECR 773
139
Ibid, Plaumann & Co v. Commission of the European Economic Community, 25/62 [1963]
ECR 93.
140 Société Générale des Grandes Sources and others v Commission of the European Communities,
96/92 [1992] ECR 118

141 Jasbhai (n 132)

ISSUE D: WHETHER SIERRA ACQUISITION CAUSES AAEC IN THE MARKET IN
LIGHT OF VARIOUS FACTORS UNDER SECTION 20(4) OF THE COMPETITION
ACT?
[¶ 71.] It is submitted that the Competition Commission of BinTin Land did not err in approving
Novak’s acquisition of Sierra under Section 5 of the Competition Act. 142 It is submitted that the
merger is not anti-competitive because firstly (I), the Combination already got the due clearance
from the CCB. Secondly (II), the Combination does not hinder or impede effective competition
since it does not hold dominant position in the relevant market. Thirdly (III), the Combination
does not cause Appreciable Adverse Effect on Competition since it does not violate any of the
factors mentioned under Section 20(4) of the Competition Act. 143 Fourthly (IV), the combination
leads to pro-competitive efficiencies.
[I.] THE CCB GAVE DUE CLEARANCE TO THE COMBINATION
[¶ 72.] It is submitted that the CCB has already given clearance to the Combination after assessing
the factors of the combination. 144 The burden of proof is on the Commission which has to establish
that the merger is incompatible with the market forces.145 In the case of Bertelsmann AG v
Independent Music publishers and Labels Association, the Court held that there is no presumption
against the merger or that it is incompatible with the internal market. 146 After conducting its
investigation and assessing the relevant factors concerning the Combination and market, the CCB
has given due clearance to the Combination.
142 The Competition Act, 2002, § 5,

144
Facts on Record, ¶ 35.
145
Airtours v Commission [2002] 5 CMLR 317; Tetra Laval v Commission [2002] 5 CMLR 1182;
Commission v Tetra Laval BV [2005] 4 CMLR 573; General Electric Company v Commission
[2006] 4 CMLR 686.
146 Bertelsmann AG v Independent Music Publishers and Labels Association [2008] 5 CMLR
1073.

[¶ 73.] It is, therefore, submitted that the Combination does not impede effective competition in
the common market and the acquisition of Sierra by Novak is not incompatible in the economic
and legal sphere of the market.
[II.] THERE IS NO SIGNIFICANT IMPEDIMENT TO EFFECTIVE COMPETITION IN THE
RELEVANT MARKET
[¶ 74.] It is submitted that the Combination does not significantly impede the effective competition
in the relevant market. As already established, the relevant market is the OTT platforms. 147 The
SSNIP test it makes it apparent that Novak cannot increase subscription prices on its platform
without losing its consumer base and market share to other OTT platforms 148.
[¶ 75.] The main consideration, while assessing the combination of Sierra and Novak, should be
that if after the combination, Novak increases its subscription prices, would it still hold the same
market share as earlier. 149 The consumers, will in such a scenario shift to other OTT platforms and
thus Novak will lose its market share to these OTT platforms. There are readily available
substitutes which can be easily accessed by the consumers. Therefore, in the relevant market,
Novak will still not be in a dominant position even after its combination with Sierra.
[¶ 76.] It is thus submitted that the Combination does not significantly impede effective
competition in the relevant market. The Combination does not prevent any other OTT platform
from doing business and does not make them dependent on Novak. In the case of Airtours v
Commission, the Court while overruling the decision of Commission held that the merger was not
making any other firm dependent on the Combination.150 Similarly, the Combination in no way
hinders the ability of Bart or any other company to do business in the OTT sector. They are in no
147
Memorandum ¶2
148 Facts on Record, ¶ 34
149 European Commission, ‘Guidelines on the Assessment of Horizontal Mergers under the
Council Regulation on the control of concentrations between undertakings’, OJ C-31 (2004)

150 Airtours (n 4)

way prevented from forming agreements and offering lucrative offers to consumers.
[III.] THE COMBINATION DOES NOT CAUSE AAEC IN THE MARKET
[¶ 77.] The Combination does not aggravate the already existing circumstances in the OTT market
because firstly [A], the combination does not create further barriers to entry in the market.
Secondly [B], countervailing buyer power already exists in the market.
A. The combination does not create further barriers to entry in the market
[¶ 78.] It is submitted that the Combination does not aggravate entry barriers in the OTT market
under Section 20(4)(b) of the Act. 151 One of the important factors while assessing any combination
is to check whether the combination is creating barriers for entry to the new players or expansion
for the current players in the market. 152 The assessment for entry barriers include: absolute
advantages, intrinsic or structural advantages, economies of scale, and strategic advantages.
[¶ 79.] It is conceded that there already exist many technological difficulties in entering the OTT
market.153 The Combination does not create any new type of difficulty. Novak would not have an
absolute advantage as other companies always have an option to reach out to consumers and to
offer them more lucrative deals. Further, the OTT platforms are mainly technology-driven systems
and this form of barrier always exists in this market. The Combination is not adding anything in
this regard. Further, concerning economies of scale, new companies can easily establish their
business at lower levels and are free to grow them. Therefore, the Combination is not adding
anything new to the same.
151
Section 20(4)(b), The Competition Act, 2002, § 20(4)(b).
152
Organisation for Economic Co-operation and Development ‘Merger Remedies’ (OECD, 2003)
< https://www.oecd.org/daf/competition/34305995.pdf>
153 Hedda Berto, ‘Sharing is caring – An Examination of the Essential Facilities Doctrine and its
Applicability to Big Data’ (2020), <http://www.diva-

portal.se/smash/get/diva2:1435499/FULLTEXT01.pdf>

B. Countervailing buyer power exists in the market
[¶ 80.] It is further submitted that there exists countervailing power in the market and the
Combination does not violate Section 20(4)(d) of the Act. 154 Countervailing buyer power exists
in a market where a consumer is able to use its negotiating strength particularly to constrain the
ability of the Combination to increase prices. 155 Where the consumers can exercise their
negotiating power or have alternatives, there is a countervailing power in the market.
[¶ 81.] There exist other platforms such as Bart where consumers can switch, and other OTT
platforms that prevent Novak from raising price or to exercise any unreasonable power in the
market. Further, due to digitalization, a large population is shifting online. 156 The pace of evolution
of digital markets and the dependency on them is increasing at a faster pace, making the buyers
more impowered. Therefore, it is highly unlikely that consumers would have to pay higher prices
as an effect of this Combination, unlike the cases where combinations have reduced countervailing
power in the market. 157 This gives immense countervailing power in the hands of the buyer.
Therefore, the Combination does not violate Section 20(4)(d) of the Act.
[¶ 82.] It is submitted that the Combination would not violate other factors under Section 20(4) of
the Act. The Combination does not have a capacity to increase the prices or profit margins
significantly due to the availability of substitutes, and therefore, it does not violate Section 20(4)e
of the Act. It is further submitted that the extent of effective competition is likely to sustain in the
market and it aids in the growth of innovation and technology. Therefore, the Combination does
not cause adverse impact on the effective competition in the market, and thus, it should be allowed.
154
The Competition Act 2002, § 20(4)(d),
155
Whish (n 4) p. 940
156 Organisation for Economic Co-operation and Development, ‘The Evolving Concept of Market
Power in the Digital Economy’, (OECD Competition Policy Roundtable Background Note, 2022)
157 Federal Trade Commission v Staples 970 F. Supp. 1066 (D.D.C. 1997); Dr Pepper/Seven-Up
Companies v Federal Trade Commission 991 F.2d 859 (D.C. Cir. 1993).

[IV.] THE COMBINATION CAN BE OBJECTIVELY JUSTIFIED BASED ON EFFICIENCIES
ARISING FROM IT
[¶ 83.] It is submitted that competitive markets have higher efficiency providing maximum
satisfaction attainable by the society. And the Combination of Novak and Sierra would further
lead to efficiency in the market. There are no adverse effects on competition in the market due to
the Combination. Nonetheless, the efficiency that the Combination would brought into the market
would counteract the effects on competition and potential harm, if any, to consumers that would
otherwise have occurred.
[¶ 84.] The efficiency in the market is measured is mainly measured from two factors; 158 firstly,
the Combination may increase the speed of an innovative product reaching the market. Secondly,
the Combination would incentivise investment that ultimately benefits consumers. Both the
factors are being fulfilled here. The acquisition of Sierra having around 5% market share would
help in providing more attractive offers to the increased consumer base. This would help Novak
to diversify it’s services to consumers by providing more time-related data and information. This
aids in nature and extent of innovation in the market, which is one of the factors while assessing
the Combination.159
[¶ 85.] It is submitted that the BCLT has to look at privacy concerns not in isolation as the BCLT
is not empowered to do the same. 160 The BCLT is empowered to look at privacy issues only while
determining the test of ‘significantly impede effective competition’. It was established above that
the Combination does not impede the competition in the market in any way. Just looking at the
privacy would not serve the purpose here.
158
Organisation for Economic Co-operation and Development, ‘Start-ups, Killer Acquisitions and
Merger Control’, (OECD, 2020) <https://www.oecd.org/daf/competition/start-ups-killer-
acquisitions-and-merger-control-2020.pdf>
159 The Competition Act, 2002, s 20(4)(l),.
160 Ben Holles de Peyer, ‘EU Merger Control and Big Data’ (2018) 13(4) Journal of Competition
Law and Economics p. 767-790;

[¶ 86.] If the BCLT were to begin evaluating privacy that are not linked to competition in the
merger control processes, i.e. freestanding privacy concerns, this could move the attention of
antitrust law away from efficiency. No personal data of consumers are being asked and whatever
data is required, it is required while and for using the platform. The same is utilized to provide
real-time information to consumers for providing them the best experience. The Combination
would solely further the same objective. Therefore, it is submitted that the Combination is
increasing efficiency in the market and counteracting the potential harm, if any, to consumers.

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER [PRAYER]
PRAYER
Whereof in the light of the issues raised, arguments advanced, and authorities cited, it is most
humbly prayed that this Honorable Tribunal may be pleased to adjudge and declare that:
I. Novak has not violated § 3 of the Act
II. Novak has not violated § 4 of the Act
III. Mr. Samesh Rippy does not have locus to challenge the order of the CCB dated May 26,
2023 within the meaning of § 53B of the Act
IV. The Sierra Acquisition does not cause AAEC in the market in light of various factors listed
under § 20(4) of the Act
And pass any order that it may deem fit in light of equity, fairness, and good conscience.
For this act of kindness, the appellants shall duty-hound forever pray.
ON BEHALF OF NOVAK, CCB.
029-A
COUNSEL FOR NOVAK, CCB.
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WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER [TABLE OF CONTENTS]

LIST OF ABBREVIATIONS………………………………………………………… iii

INDEX OF AUTHORITIES .......................................................................................................... vi

STATEMENT OF FACTS .......................................................................................................... xix

ISSUES FOR CONSIDERATION .............................................................................................xxii

SUMMARY OF ARGUMENTS ...............................................................................................xxiii

WRITTEN ARGUMENTS ............................................................................................................ 1

ISSUE A: WHETHER NOVAK IS IN VIOLATION OF SECTION 3 OF THE ACT ...................... 1

[II.] NOVAK HAS NO MARKET POWER .................................................................................. 6

[III] THE CO-PRODUCTION AGREEMENTS AND ARTIST AGREEMENTS DO NOT

[IV] THE PRO-COMPETITIVE EFFECTS OUTWEIGH ITS ANTI-COMPETITIVE

[V.] THE AGREEMENT CAN BE OBJECTIVELY JUSTIFIED .............................................. 12

ISSUE B: WHETHER NOVAK IS IN VIOLATION OF SECTION 4 OF THE COMPETITION

[I]. THE PHRASE ‘ANY PERSON’ UNDER § 53B MUST BE CONSTRUED

ISSUE D: WHETHER SIERRA ACQUISITION CAUSES AAEC IN THE MARKET IN LIGHT

[I.] THE CCB GAVE DUE CLEARANCE TO THE COMBINATION..................................... 26

[II.] THERE IS NO SIGNIFICANT IMPEDIMENT TO EFFECTIVE COMPETITION IN THE

[IV.] THE COMBINATION CAN BE OBJECTIVELY JUSTIFIED BASED ON

FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024

S. No. ABBREVIATI MEANING

5. AAEC Appreciable Adverse Effect on

6. AIR All India Reporter

9. BCLT BinTin Land Company Law Tribunal

10. CCB Competition Commission of BinTin Land

11. CCI Competition Commission of India

13. COMPAT Competition Appellate Tribunal

14. Corp Corporation

16. DRJ Delhi Report Judgement

17. ECJ European Court of Justice

18. ECR European Court Reports

20. Etc. Etcetera

21. EU European Union

22. FDI Foreign Direct Investment

23. GDP Gross Domestic Product

24. IPR Intellectual Property Rights

25. LLP Limited Liability Partnership

26. Ltd Limited

27. NCLAT National Company Law Appellate Tribunal

28. OECD Organisation for Economic Co-operation and

THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 iv

29. OFT Office of Fair Trading

30. OJ Official Journal

31. Ors Others

32. OTT Over The Top

33. OUP Oxford University Press

35. Reg. Regulation

Small but Significant and Non-Transitory Increase in

40. UOI Union of India

THE FIFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 v

S.No. INDIAN PAGE No.

Accessories World Car Private Limited v. Sony India Pvt Ltd,

l. Case No. 03 of 2020 (CCI) 6

2. No. 20 of 2018 (CC1) 4

Ashish Ahuja v. Snapdeal, Case no. 17 of 2014 (CCI)

Automobiles Dealers Assn. v. Global Automobiles Ltd. and Anr.,

4. Case No. 33 of 2011 (CCI) 6

5. Belaire Owners Association v. DLF Ltd. Case no. 19 of 2010 5

6. Eros International Media Limited v. Central Circuit Cine 7

FICCI Multiplex Assn of India v. United Producers/Distributors 15

THE FIFFTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2024 vi

8. FX Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India 13

Jasbhai Motibhai Desai v. Roshan Kumar AIR 1976 SC 578

Jasper Infotech v. Kaff Appliances, Case no. 61 of 2014 (CCI).