We welcome you to the 5th edition of TNNLU – CCI National Moot Court Competition!
The Moot Court Committee, TNNLU Trichy aims to further the vision of the CCI by promoting, sustaining, and enabling young scholars and providing a platform for engagement and discourse, and to outdo by creating an atmosphere of intense learning and healthy competition. This 5th edition of the Competition is being held under the patronage of the Competition Commission of India, and our knowledge partners, SCC Online and Eastern Book Company, from May 13th – 14th, 2023.
We at TNNLU Trichy believe that education unless and until complemented by intellectually invigorating challenges fails its purpose. Cognizant of this responsibility and with a vision to foster the advancement of learning and research in the field of Competition Law in collaboration with CCI and our knowledge partners EBC-SCC Online, we will ensure that this Competition will help all participants hone their mooting skills along with exploring the nuances of Competition Law with an exciting and challenging proposition.
The organizing team has left no stone unturned in their diligent endeavor to make this competition an enriching experience. We welcome all the judges and the participants, and hope that we are able to make this a memorable event for all.
The competition is about to begin, and we will keep you updated on everything.
Best wishes to all participating teams!!
DAY-1
8:30 AM– Inaugural Ceremony
The inauguration Ceremony for the 5th TNNLU-CCI Moot Court Competition commenced with a warm welcome address by Ms. Swati Pragyan Sahoo, member of the Moot Court Committee.
After resolving all the queries of the participants, we are ready to begin the moot court rounds.
All the competing teams have our best wishes!!.
8:35 AM: Judges Briefing
The judges for the Preliminary Rounds have been briefed by two members of the Moot Court Committee. A comprehensive bench memorial and a condensed version of the memorials were also provided to the judges. The judges for the rounds are distinguished legal experts in their respective disciplines and are here to evaluate each team’s comprehension and command over the law. The Preliminary Rounds shall begin at 9:30 AM.
9:30 AM: Preliminary Round 1- Session 1
The Round 1 of Prelims have started.
The teams are filled with enthusiasm and are confidently presenting their arguments. The participants are flawlessly presenting their arguments, which shows the repository of their months of hard work, dedication and efforts that they have put in for this competition.
10: 00 AM: The rounds are in full swing in all the 6 Court Halls of Session 1. With speakers of both the parties putting forth their arguments, while also effectively addressing the questions asked by the Division Bench, we can witness the intense atmosphere in all the Court Halls.
10:35 AM: Session 1 of Prelims 1 is reaching its conclusion part. With parties presenting their rebuttals and sur-rebuttals to the earlier arguments advanced, we can see the anxious faces of the participants, who are trying to comprehend how the Bench will accept or reject their contentions.
10:50 AM: All the rounds of Session 1 in Prelims 1 are done. At the end, the Judges are giving their valuable feedbacks to the teams, and this makes this Competition an overall great learning experience for all the participants.
Now we will have the next 12 set of teams, who will be competing against each other before the Division Benches in 6 different Court Halls.
Session 2 of Prelims 1 will commence in a while.
11: 20 AM: Preliminary Round 1- Session 2
After verifying the identity of the participants, and briefing the judges about the required details related to the teams in the Court Halls, Session 2 of Prelims 1 have finally started.
11: 50 AM: We are witnessing a fierce exchange of arguments between all the teams in all the 6 court Halls. With Speakers trying to defend their stand, while Researchers are keenly observing the proceedings and complementing the arguments of the Speakers by highlighting the relevant part of the memorials and the compendiums.
12:20 PM: In all the Court Halls we can see some great set of arguments being put forth by the participants, and with the Speakers trying to respond to the queries put across by the Bench, we are about to reach the end of the 2nd Session of Prelims 1.
12:45 PM: We were a witness of a phenomenal display of arguing skills by all the Speakers in all the Court Halls. The judges are giving their valuable feedbacks to the participants, which will help them enhance their arguments in the upcoming rounds.
With this Round 1 of the Prelims is over!
We will now be back after a short lunch break.
Stay Tuned for further updates!!
2:00 PM: Preliminary Round 2- Session 1
After a much needed break, the teams are back and are ready to put a more stronger front in the 2nd Rounds.
With participants and judges being given a general briefing of how the Court Hall will proceed, we are about to commence Round 2 in a while.
2:10 PM: Session 1 of Prelims Round 2 have started!
The counsel for the Informants are elaborating the facts of the case to the Bench. After which the Judges have raised certain jurisdictional issues on the ground that how can a privacy issue be raised before a Competition Commission? To which different teams have a different stand, and they are tackling this issue accordingly.
2:35 PM: The rounds are in full swing, with judges throwing interesting questions to test the knowledge of the participants. We can see the Speakers very tactfully handling the those questions and articulating their arguments in impeccable manner.
3:05 PM: As we move to the last lap of the Rounds we can see the teams strongly putting their rebuttals, based on their observation and analysis of the rounds. This is countered by the opposite parties with a brief sur-rebuttal, with which the Session 1 of Prelims 2 is nearing its end.
The participants of Session 2 are gearing up for their rounds, and we wish them all the very best for the same.
3:25 PM: By now the rounds in all the Court Halls are over. The Judges are giving their valuable feedbacks to the participants based on their performance in the rounds.
With this we conclude the 1st Session of Prelims 2. The 2nd Session will commence in next 20 minutes.
3:50 PM: Preliminary Round 2- Session 2
Session 2 of Prelims Round 2 have started!
With Counsels briefing the judges the facts of their case, and judges inquiring about the issues that have been raised by the Teams based on those highlighted facts.
4:20 PM: After an excellent delivery of arguments, the Informants have completed their arguments advanced. Now the Opposing Parties will put forth their stand, which will be tested by the Judges on the parameters of the arguments advanced by the Informants.
5:05 PM- Rebuttal and Sur-Rebuttal Rounds
As both the sides have finished presenting there arguments, now they moved to the Rebuttal and Sur-Rebuttal. In Court Hall-4, Petitioner side raised legitimate concerns regarding the submission made by the Respondents. However, they (Respondents) were also quick to answer them. In general, both the parties stood their respective grounds and have argued fiercely before the Division Bench.
5:28 PM- Preliminary Rounds-2 got over
With Preliminary Rounds-2 getting over successfully, now participants are eagerly waiting for the results. As for the Quarter Finals, top 8 teams details will be released tentatively by 6:00 PM.
6:10 PM- RESULTS ARE OUT!
Here are the top 8 teams that have qualified for the Quarter-final Rounds:
T01
T02
T03
T05
T09
T14
T19
T23
We heartily congratulate all the qualifying teams!! And wish them luck for the Quarter-Finals, which will be conducted in a while.
7:10 PM: Quarter Finals Rounds
The Quarter Finals Rounds have begin!
We are about to witness a fierce competition in 4 different Court Halls, with an panel of Judges consisting of subject experts from the industry.
All the participants are charged up to present there submissions, as each of there better arguments will increase chances to qualify for the Semi Finals.
7:20 PM: With the commencement of the Rounds, the Petitioner sides is looking very strong. They are very precise in there arguments and delivery. Also, the relevant sources which they are citing to support there submissions is making there case more stronger.
7:40 PM: With the dawn of the highly anticipated Rounds, the illustrious Respondent side emerges as a formidable force, emanating an aura of remarkable strength and unwavering precision in their compelling arguments and eloquent delivery. They very well able to argue and defend there side, and also answered the concerns raised by the Petitioners.
8:10 PM: As a whole, there was utmost precision in the arguments and delivery by Informants and Respondents. Their eloquence is a testament to their mastery of legal discourse, demonstrating a deep understanding of the intricacies and nuances of the law.
8:30 PM: All the teams have adorns their case with a bouquet of meticulously selected and relevant sources, akin to a splendid array of vibrant blossoms, enhancing the robustness and irrefutable nature of their submissions. Each citation serves as a radiant petal, carefully arranged to form an exquisite tapestry of undeniable support, casting a resplendent light upon the strength of their position.
8:50 PM: In the submissions, what is to be noted, is that Opponents side diligently relies on a wealth of relevant and authoritative sources to bolster their case. By citing these sources, they fortify their arguments with sound legal principles, precedents, and scholarly opinions, elevating the strength and credibility of their position. The Judges are also not letting the participants go without a tough fight, and are putting across a array of questions, which the Speakers are trying their best to respond to.
9:10 PM: As both the sides finished presenting there arguments, now they moved to the Rebuttal and Sur-rebuttal round. In Court Hall-4, Petitioner side raised legitimate concerns regarding the submission made by Respondents. However, they were also quick to answer them. In general, both the parties stood their grounds and have argued fiercely before the Division Bench.
9:30 PM: Quarter Final Rounds are over. Soon the results for Semi Finals will be out.
10:30 PM: Semi Finals results are out!
Teams that have qualified for tomorrow’s Semi-Final Rounds are-
T01
T03
T05
T19
We Congratulate the Selected teams. And we hope it was a great learning experience for all the other teams. Everyone has a long journey ahead!!
With this its the end of Day-1, tomorrow we will be having Semi Finals Round at 10:30 AM and Finals at 3:00 PM.
Day 2- 14th May, 2023
9:30 AM: Judges Briefing
The judges for the Semi-Final Rounds are been briefed by two members of the Moot Court Committee. A comprehensive bench memorial and a condensed version of the memorials were also provided to the judges.
The esteemed panel of judges for the Semi-Final Rounds consists of:
Court Hall 1:
- Shri Arun Dhall (Deputy Director of CCI)
- Ms. Ela Bali (Partner at J. Sagar Associates)
- Dr. Versha Vahini (Professor at School of Law, Bennett University)
Court Hall 2:
- Dr. Anil (Deputy Director of CCI)
- Dr. Keshavamoorthy (Associate Professor at VIT School of Law)
- Mr. Mohammed Azaad (Assistant Professor at TNNLU).
The Semi-Final Rounds will start at 10:30 AM.
10:30 AM: The Semi-Final Rounds have started!
Court Hall 1:
10:30 AM- Semi Final Round Started
T-05 started his arguments by establishing the jurisdiction under Section 19(1) of CCI. After that he divided the arguments between the Counsels. First two issues was taken by Counsel-1 and Counsel-2 took another three issues.
Arguments presented by Counsel-I
First issue is about the jurisdiction over the said matter. Regarding Impugned transactions affect competition in Wadya. He argued about Anti-Competitive implications that are raising with respect to the matter. Cited examples of Facebook, Uber which used methods which are Anti-Competitive. He further submitted that the privacy policy of Raven has affected the consumers. Even Reiterated that CCW needs to protect the Consumers interests.
He further argued that privacy also carries an “Economic Cost”. Consumers continue to rely on objectionable activities due to no competitive options. Even Raven’s change in privacy policy has affected.
10:40 AM- Further submitted that Omega has abused its dominant position under Section 4 of the competition act, 2002. Revan and Omega are part of the same market as both offer consumer services. Omega dominant in the market submitted by Counsel. Omega relative position of strength, and there are substantial entry barriers too. There is also Direct network effect in Omega’s position.
Access to more data was present. Here, to monetize and earn more, Omega, was using AI, and it is another barrier to entry to target services. Also, one of the strongest barrier against the new competitors.
Consumers are dependent on Omega. They are engaging in predatory activities. The price below the Cost price. They are charging free. Abuse of dominance and foreclosing the market showed intention to eliminate the competitors. Omega was not able to recoup its loss and there was also a denial on the market access by Omega. Denial of market access was intentional or deliberate, as easy entry is not there but still can’t say it is intentional.
11:00 AM- Counsel-2 presented 3,4, and 5 submission.
Omega didn’t disclosed all materials to CCW, two major grounds contention- Section 20 is the procedural section. Cited cases. Sec 20(1) should not be interpreted to destroy the rights of the parties.
CCW can reinitiate the inquiry. Para 18 and 19 of moot proposition- share purchase agreement was found. Information mass was material and substantial. CCW can reinvestigate-Omega didn’t disclose material- even after expiry of one year.
4th submission- premise of submission- impugned combination- para 5 and 14 moot proposition- Omega through face view present in the market- argued regarding horizontal unilateral effect on the market. Impugned combinations will also have other problems- Nature and extent of market- Omega in a relatively advantageous position.
11:10 AM- Omega acquiring paper sky- can get the information about its previous client and can use it- anti competitive- merged entity will not have any other reason- causing AAEC in the market. Change in the privacy policy of Raven- will cause harm. Transaction not exempted- not made for investment purpose- acquirer didn’t took any rightful decision. As per schedule 11 competition regulation.
Control is acquired in this case- Modus Operandi completely changed. Concerns were raised by the judge- Speaker cleared them- Present combination will reduce the competition in the market. Chronology was given that showed everything developed. No choice was given to consumers regarding Privacy.
11:20 AM-Moved to the last and 5th submission- Omega was a party to the investment made by paper sky and Ambrox in raven and should be held liable for any anti competitive effects arising out of that agreement. Under Section 26 (1) was relied upon.
Then the Counsel moved with the Prayers.
11:25 AM- Opponents started presenting there arguments.
Counsel-1 dealt with the issue that-
Whether CCW has the power to initiate an inquiry or investigation in relation to Omega’s acquisition of Papersky and Ambrox and hold omega liable for any anti-competitive effects arising out of paper sky and Ambrox’s agreement with Raven/
CCW doesn’t have power to initiate an inquiry with respect to the combination. In the present instance- Omega notified and sufficient information was shared with the CCW. They are misguiding the Commission. There was a share purchase agreement. There was no sufficient reasoning provided by CCI. Para 18 DG noted regarding Data sharing clause. How omega caused an anti-competitive effect was not mentioned. Explained about the intention. Judge wanted clarification regarding anti competitive effect- Counsel presented exactly what he wanted to argue regarding anti- competitive effect.
11:40 PM- He further argued that CCW has already passed an order approving Omega’s acquisition of Ambrox and Paper Sky. Agreement has no relation between them. And Omega cannot be blamed. Far-fledged allegations by Informants- Omega working in cloud service, not having the same web. CCW can’t investigate after one year- already surpassed the limitation period. Don’t have decisive control.
11:45 PM- Next argument was about the jurisdiction to entertain a dispute regarding data privacy. Market power is important- Academic community is a non rival, like Ubiquitous good. Easily collectable form of goods- He further submitted that data is not an indicator of market power and big data didn’t consist of harm to the consumers. Clear holdings was established by citing relevant cases- CCW ambit to take matters into consideration.
Away from the Competition law aspect- matter which is present in front of CCW. He further submitted that data privacy is to be dealt with appropriate sectoral regulators. Authorities under the IT Act and Consumer Protection Act and can be construed as appropriate Sectrola Regulators. Privacy is a consumer protection issue. He submitted that Privacy will not come under the ambit of CCW. Competition act and authorities established under the same shall not have an overriding effect. Regarding fundamental rights, the constitutional court will decide not CCW.
11:50 AM- Co-Informants 2 started presenting arguments-
3 and 4 issues was dealt.
Omega has abused its dominance in the relevant market. Omega is not a dominant entity and didn’t abuse its position. Relevant market is market for digital social media and communication platforms in Wadiya. Relevant geographic market should be Wadiya. Relevant product market is the market for digital social media and communication platforms in Wadiya. To determine the relevant product market the commission is to have due regard to all or any of the factors contained in Section 19(7) of the Act, That every social media is equipped to send direct messages. Argued that Omega is unable to act independently of the competitive forces.
Even market share doesn’t indicate a position of dominance and consumers possess sufficient countervailing buying power. So it can be argued that Omega is not a dominant entity in the relevant market. Para 7 was cited to clear the concern raised by the Commission.
Market share is only one indicator for dominance. Consumers possess sufficient countervailing buying power. To back it up, the appropriate case was cited.
12:00 PM- The revenue model was argued. Because Omega cant move independently so not dominant. Even the market share doesn’t indicate a position of dominance. Privacy policy of Raven- clause 4.2- allows users to have private chats which are encrypted. The Consumer can opt out to share data when in private chats. Entities can indeed access the market, no obstacle.
There was no predatory pricing just following the industry standards.
12:05 PM-With respect to the the 4th Issue
Omega’s acquisition of Ambrox and papersky has caused an appreciable adverse effect on competition in the relevant market- analyzed based on the parameters mentioned under Section 20(4) of the Act. Three submissions were made that effective competition is likely to be sustained in the relevant market of digital social media, even if privacy were a competition issue, it does not lead to an appreciable adverse effect on competition. And all benefits from the combination ultimately accrue to the consumer. Co-informants argued that allegations do not have substance in the present case.
Omega and Paper Sky don’t share the same customers. There are many substitutes in the market. There is no unreasonable restraint of trade. Omega only acquired a minority stake in Raven. Para 16 of the moot proposition was cited. Raven called for investors. So it can also be said that there are a lack of entry barriers in the Market. Consumers are having a countervailing buyer power. Through improving the services, there are no anti competitive activities here.
Co-Counsel moved to the prayers.
12:15 PM- Rebuttal and Sur-Rebuttal session-
Firstly- where it is written that share purchase agreement as given- there is misguided- Bharti airtel judgment was wrongly cited-data is indicative of market power- relevant market is erroneously defined, fundamentally wrong- that it is cloud based service.
Sur-Rebuttal-
Para 16- Omega received information and can be assumed that CCI was satisfied with the information. Necessary approval was already received. Onus is also on the CCW. Bharti airtel clarification was provided- present case there must be an authority. Data is not a sole indicator of market power. Matter in dispute- is regarding combination. Omega holds the subsidiaries. There is a vertically adjacent market. Omega’s function is much more.
How has there been predatory pricing? How have there been anti-competitive activities?
Change in Raven’s privacy policy- anti- anti-competitive effects. It is affecting privacy that is what has been argued here.
Commission gave feedback, appreciated the participants, and also gave constructive criticism.
Court Hall 2:
The Counsel for the Informant raise the following issues:
Does CCI have jurisdiction to deal with Privacy issue?
The Counsel substantiates its arguments in the following way: Consumer data can be used in two ways for and against the Customers. Therefore, Privacy is included within the Jurisdiction of CCI, this can be seen in the WhatsApp Case, and importance of Privacy was emphasized in the 9 Judges Bench of KS Puttaswamy v. Union of India case by the Supreme Court of India.
10:38 AM: The Bench now asked the Speaker whether the present matter is a consumer matter? Therefore, can CCI go into this case? To which the Speaker stated that based on the Preamble of Competition Act, the welfare of the Consumers is also looked into. To substantiate this argument the Counsel again uses WhatsApp case. But the case was not accepted by the Bench by mentioning cases where CCI has rejected to accept Consumer related case, by CCI.
10: 42 AM: Now the Counsel move to the issue related to the Abuse of Dominant position by Omega. For which they divided the market in relevant product and geographical market. Where the Counsel finds that the relevant geographical market is the Republic of Wadiya.
10:45 AM: Here the Bench asks the Counsel the Section of Competition Act, under which they have approached the Commission? To which the Counsel replies that they have approach the Commission under Section 20 as opposed to Section 19.
10:47 AM: The Bench states that how can Commission look into the issue of Appreciable Adverse Effect in the Market due to Abuse of Dominance or can they also look into Combination Issues, under Section 20?
10:50 AM: To which the Counsel responds that because there is a situation of Appreciable Adverse Effect, which gives the power to CCI to look into the Abuse of Dominance cases along with an inquiry into Combinations. The Bench does not seem to be satisfied with this argument, and the Counsel is also not able to substantiate their stand with relevant authorities.
10:54 AM: The Bench then asks the question that can CCI deal with Privacy specially in a case where there is a vacuum in Privacy legislations by the State? The Counsel responds in affirmative.
10:58 AM: The Bench now asks the Counsel to again go back to the Dominance issue, by asking the relevance of the Counsel highlighting 2009 data to prove their stand of Omega’s dominance in the Market.
11:02 AM: The 2nd Counsel starts his issue on did Omega have the ill-intent to achieve a competitive advantage. The Counsel supports this issue by citing the recent Google case, where CCI has fined Google for misusing its dominant position in one market to enter other markets. Similarly Omega is also misusing its position to acquire other companies like Raven.
11:06 AM: Now based on this the allegation of Privacy originates for the very fact that after acquisition of controlling interest in Raven by Omega will lead to Raven’s customers data being used by Omega, who do not respect the encryption policy of Raven, and which is a threat to Omega’s interest also.
11:09 AM: The Bench here is not happy with the use of term ‘Cartel’ in the arguments. As the Bench states that can an inquiry be done in Cartel agreement while the Commission is doing a Combination inquiry?
11:10 AM: According to the Bench, there is no case of Cartel, as there is no secretive arrangement here between the parties. To which the Counsel agrees and thus leave his argument of there being a Cartel in the present case.
11:15 AM: Now the Counsel moves to the last limb of their argument, that whether there was an anti-competitive agreement in the present case? But there the Bench questions the Counsel that the present case just looks like a vertical arrangement to increase the efficiency of the arrangement between the parties, thus there seems to be a pro-competitive agreement. But here the Counsel, refutes that by citing the facts where because of the alleged acted of Omega, certain companies were forced to leave the market.
11:19 AM: Here the Bench again interjects and highlights that this was because of the efficiency of Omega, which because could not be matched by the other players. Therefore, it is just the efficiency of Omega and not the dominant nature of the said player, which compelled the other parties to exit the market. This is not anti-competitive.
11:22 AM: Now because of paucity of time, the Counsel for the informants move to their final prayer, after which they conclude their arguments.
11:23 AM: Now Counsel 1 of Opposing Party start their arguments.
The main issues raised by the Counsel are that in the absence of any anti-competitive conduct the CCI does not have the jurisdiction of Privacy case. Secondly, Omega does not hold a dominant position in the market, and even if it does then also it has not abused the same.
11:27 AM: To the first issue the Bench by highlighting the Memorial of the parties states that if they have recognized the jurisdiction of the CCI in their memorial then how can it refute the Commission’s jurisdiction in their arguments.
11:32 AM: To which the Counsel states that they agree that CCI does have jurisdiction in some issues of Competition Law, but they do not have jurisdiction to inquire in Privacy case. This is substantiated by the argument that there is not statutory authority given to CCI to go into Privacy issues, and considering that there are other alternative remedy available to the Informants therefore, this case should not be taken by CCI. Furthermore, this is a purely privacy case therefore, CCI should not in any case look into this case, as there is no competitive angle involved in this case.
11:36 AM: To which the Bench asks that then who can then look into such a case, to which the Counsel responds that the case can be taken under the IT Act or by a Constitutional Courts. Now the Bench asks that whether the Counsel thinks that Privacy cases can only be filed against the Constitutional Courts and no other authority?
11:40 AM: Now the Counsel tries to show how there is no privacy issue to begin with, by highlighting how the present case is different from the WhatsApp case, where as opposed to Facebook owning all the shares WhatsApp, Omega does not have all the shares of Raven and it not even owns the majority shares in Raven. Therefore, it is not in the position to violate the Privacy concern as has been flagged by the Informants.
11:44 AM: The Counsel requests a 2 minutes extension of time. The same is granted.
11:48 AM: Now the Counsel moves to the argument that Omega has not abused it dominant position by asking Raven to share its data, as the Counsel highlights how Raven has had earlier agreements also where data sharing was a clause. To which the Bench states that based on the position of Omega, we see that the consumers do not have an opt out policy in the present case. Therefore, when Omega asks the companies to share data with them, who do not even disclose them as to how they will use this data, as opposed to the other players, who had disclose how they will use the data.
With this the Speaker 1 of Opposing Parties conclude their arguments.
11:57 AM: The 2nd Counsel starts with the argument that there is no anti-competitive issue in the present case, as Omega has not entered into an anti-competitive agreement. Thus, it cannot be penalized under the Competition Act. As firstly, the alleged AAEC is not the direct but a subsidiary effect of the arrangements between the other companies. The Counsel substantiates this by stating that DG’s Report is the only report to raise the allegation against the Opposing Parties, but the same is not accepted by the Bench, by stating that yes even though the DG’s report is not binding on the parties but the same is to be considered by the CCI, as DG is the only investigating body of CCI.
12:05 PM: The Counsel here again highlights that since Omega just has 18% stakes in Raven, which shows that it is not in the position to dictate any anti-competitive clause, and since the other companies have accepted the policies of Omega, even when they did not have very significant shares in their company, therefore they cannot dictate the terms of Raven. Thus, in such a situation there is no anti-competitive clause in the agreements.
12:10 PM: Finally, the Counsel comes to their concluding argument that Omega cannot be penalized under Sections 20 and 43 of the Competition Act, 2002.
12:17 PM: Now we move on the rebuttals, where the Counsels based on there observation of the proceedings have raised certain questions. But the Opposing Parties also respond to those questions in an affirmative tone.
12:22 PM: With this we come to an end of this exciting session, where we witnessed all the parties putting across their arguments in a fierce and affirmative way.
12:30 PM: Results for the Finals are awaited and it will be declared in a mean while.
1:00 PM: RESULTS ARE OUT!
Teams which are going for the Finals are-
T-03 and T-05
We Congratulate the selected teams. The Final Rounds will be conducted at 3:00 PM.
FINAL ROUNDS
3:10 PM: Finals Rounds started
The esteemed panel consists of Judges for the Final Rounds were-
- Mr. Rahul Goel who is Partner at AnantLaw
- Shri. Shiv Ram Bairwa who is Director in Competition Commission of India
- Mr. G.V. Anand Bhushan who is General Counsel/Partner-Head at Bhushan Rajaram, Advocates and Consultants.
Following are the arguments of the respective teams:
Team 05- Speaker-1-
Regarding Jurisdiction and Domination, the position abused by Omega was dealt by Speaker-1.
The Counsel argues that CCI has jurisdiction, while dealing with the privacy policy, which has adverse effects. As collection of excessive data, the dominant firm with the largest market leads to their manipulative and exploitative conduct, which is anti-competitive. A similar case was seen in the WhatsApp case, where CCI took Suo moto cognizance of the case.
Bench asked the question: Who is the consumer? Why do you approach us and not the Consumer Forum? To which the Counsel answered that Consumers are those who have been affected by the Anti Competitive acts, that’s the reason why we approached you. The follow up question to this was regarding the Definite sectoral forum that why didn’t they choose the consumer forum?
Jurisdiction lies with CCI. Regarding Privacy, relevant case laws also cited relevant cases. Another concern which was raised by the Bench was that Vinod Kumar Gupta’s judgment is different here? Raven’s change in policy is similar to Whatsapp was submitted by the Counsel.
Here Privacy carries an “Economic cost”. This proves that there is abuse of dominance, and also engaged in predatory pricing which is zero price below cost, also giving services for free. Price below the cost of production, foreclosing the market, driving competitors out, were other things which were raised by the Speaker. Here there is a two sided digital market. Omega will be able to recoup its losses from one to another. There was also denial of market access, which resulted in Abuse of Dominance.
Bench further asked, ” how is Zero pricing a predatory pricing, when there are other companies also in the market who are offering similar pricing policy? Regarding the same, Counsel submitted regarding Recoupment of the Market, and argued that there are two sided digital markets. Moreover, just like zero pricing of Whatsapp can’t be recouped. Furthermore, Omega created barriers for the entry of the competitors. Another question which was raised was regarding when the Market is already flooded with Instant Messaging apps, then how can the Counsel contend that there is restriction in the market? To which the Counsel responds that since Omega is creating certain conditions, like creating dark patterns, which are creating barriers to enter in the market.
Team 05 Speaker 2-
The Counsel argues that the CCI has power to reinvestigate even after expiry of 1 year. Furthermore, Omega didn’t disclose whole material information to CCI. The Counsel starts with the argument that Section 20, which is a Procedural section, cannot be interpreted to defeat the justice. This was substantiated with the case of N Balakrishnan, and the Amazon case. Therefore, the Counsel affirms that the Procedural compliances cannot be used in derogatory manner, so as to restrain the informants to get the substantive remedy under Section 20.
Furthermore, the counsel argues that if material information is not provided to CCI then the power rests with CCW to reinvestigate the matter. To which the Bench enquiries how section 20(1) comes in the picture? To which the counsel states that they are using Section 20 alongwith Section 43.Here the Counsel also highlights that after Omega imposing an obligation on the other Companies to share their transaction, that will be a restricted Combination. Therefore, since the above Combination was not reported to the Commission on time, therefore, CCI should intervene today, under Section 43. Furthermore, Omega was aware of Revan’s policy, and Paper sky and Ambrox have been providing services for a very long time.
The Counsel then moves to its next submission that DG’s subsequent view of Omega’s AAEC is correct. The Counsel substantiates it by stating that a change in privacy policy is harmful. The Bench now puts a question before the Counsels that is there any social media platform which doesn’t have a chat component, a feature of every platform? This question is brought up by the bench as they feel such a practice is normal in the market and there is nothing wrong in the same.
Now the Counsel cites a German case- Bundis Carterland, which is related to the present case, as the Commision should focus on the data which Omega will get upon acquiring Paper Sky and Ambrox. But the Bench did not accept the argument, by stating that the two situations are different, the German Jurisprudence is different from Wadiya’s Jurisprudence on Competition Law. To this the Counsel responds that they just raised it as an inference.
The Bench now puts a new question to the Counsel that what is the harm here to the consumers? To which the Counsel states that the Privacy which is a Fundamental Right is being affected, is the real harm to the Consumer here. To which the bench states that if the Consumers are agreeing to the Privacy Policy, then where is the harm to the Customer? The Counsel responds to it by stating that the harm is on that point where the Consumers are not given an option to choose an alternative product, and this becomes even more relevant in such a situation when the service of the Company cannot be replaced, and is an essential service.
Now the Counsel moves to the last Submission that Omega was a party to agreement with Paper Sky and Ambrox, and that agreement is anti-competitive. This is substantiated by the Counsel by stating that Omega can misuse the information that it receives from the other two companies. This argument was supported by the WhatsApp LLC v. CCI case. In the similar way Omega should also be held liable for the anti-competitive for the anti-competitive agreement that it entered into.
Counsel moved to the prayers!
Team 03 Opposing Parties started.
Team 03- Speaker 1:
The Counsel raised the issue that whether Omega, who is responsible for so much development in the republic of Wadiya, should be held responsible for anti-competitive practice especially when the other companies are not able to hold grounds in the market?
First point was raised regarding Jurisdiction, precisely subject matter jurisdiction, it was argued that commission don’t have the jurisdiction. And with respect to the second issue regarding abuse of dominance, Omega is not having a dominant position. Furthermore, there is a share purchase agreement as there is a combination which was duly notified and accepted by the commission. Moreover, Informats have not proved how Omega has influence on Revan. Omega acquired only 18 percent share in Raven. Much before acquiring it Omega has foregone its end-to-end encryption requirement.
In cases of integrated transactions, time is not of an essence, and this position is affirmed by the Commission at various instances. Bench raised contention that Dominance can happen even if Omega is holding only for 1 percent. To which Counsel pointed out regarding interconnection, practicality of looking into transactions to deal with the issue. Also, Raven is already taking the policy decision of not having an encrypted system.
Moving forward, Omega didn’t acquire any control over Raven. The bench feels that the present transaction is a strategic transaction. As Omega here looks to gain the Director seat in Raven, which shows that it can be anti-competitive. With respect to the Jurisdiction, CCI cannot act beyond its statutory power. Therefore, CCI cannot look into the Privacy concern, additionally in light of there being alternative remedy available.
Section 4 was relied upon to prove that there is no abuse of dominance by Omega. Based on the facts that it can be seen that Omega is not dominating in the market, as the statistics that is used by the Informats is from 2009. Furthermore, the instance market is a dynamic market, which has a sufficiently low entry barrier, which can be seen from the facts of the present case. Therefore, market dominance cannot be based on stagnant figures of market share of Omega in the Market.
This case is also different from the Facebook case where Facebook had 100% share in WhatsApp, but such is not the case in the present case. Lastly, it can be concluded that Omega didn’t indulge in any anti-competitive act. So, making Omega liable who holds a minority shareholding, will not be in consumer interest.
Counsel-2 argued that with respect to the Second issue, Omega just wants to make the market better, and their bona fide act can’t be misinterpreted. She also dealt with the Limitation period conundrum, and submitted that Omega furnished all true information.
A notification was duly given. Also, contention regarding laws of competition, which was based on Section 20(4)(j)) is speculative. To which the Bench interjects that there is indeed an adverse effect, when a firm like Omega interjects. This argument was not accepted by the Bench, as they highlighted that since Omega is the Millionaire in the room who acquires the company which may give some competition to them. To this the Counsel states that there is no conclusive evidence of Omega’s influence in the market, except the DG’s report, which is not conclusive, and is just administrative. Thus, CCI need not follow it.
Moreover, Omega has not acquired control of Raven, it can be inferred from the practicality of viewing the transaction, the time difference, and reasonable simultaneity. It is to be noted that, here there is also a 10 month difference. Furthermore, Benefiting consumers, reducing the economic displacement and improving technology was done by Omega. For consumers efficiency is increased as they are provided, better data storage service, and better advertising services at one place.
The Combination between Omega, Paper Sky, and Ambrox does not lie within the jurisdiction of CCI. Combinations are regulated under Sections 5 & 6 only, and a Harmonious Constriction of the Act shows that if anti-competitive nature of an agreement is considered under these Sections only then Section 3 and 4 will be redundant, which is not the intent of the legislature here. Thus, there is no barrier in the market because from the facts, we can witness that there have been new entrants in the market. Omega is not the party in the share purchase agreement. Also, Omega’s act is pro-competitive as it is just trying to improve the efficiency of its services.
Rebuttal–
The Counsel for Informants highlights that the Opposing parties have failed to address that Raven themself rejected Omega’s offer. Furthermore, no other body specialized like CCI is competent to deal with the current matter, which can be seen from the Privacy policy, where we can see the share purchase agreement. Here the Counsel highlights that there was a clause regarding sharing of information, for which the Jadu Shareholding case relied upon. Additionally, Omega missed out the dominant position argument.
Sur-Rebuttal-
The Counsel for the Opposing Parties refutes by stating that the Informants failed to distinguish between combination and share purchase agreement. Furthermore, in the absence of anti- competitive concern, Consumer and Constitutional courts can take upon these issues and such issues are not just restricted to the Competition Commission. Here Clause 9.4 was cited, which is not providing any conclusive definition of stakeholders. Therefore, Omega can’t be seen as sole benefactory.
The Opposing party further contends there is no substantial proof that the policy of Raven was influenced by Omega. Informants fail to justify how valid those cases were which was pointed out during Rebuttal. Here the Counsel also states that Section 43(a) is not applicable here. Predatory pricing is not present here. Policy is for the benefit of their Consumers.
With this, we come to the end of the Final Rounds of the 5th TNNLU-CCI Moot Court Competition, 2023. What an engaging session it has been!! We saw how the parties were bombarded with a lots of questions by the judges, which tested the knowledge and the depth of research undertaken by the parties, but all the participants had very tactfully tried to answer all the queries put forth by the Bench.
The Results will be announced in the Valedictory Ceremony, which will commence at 05:30 PM today.
We look forward to seeing you there!
5:30 PM: Valedictory Ceremony!
The moment you all have been waiting for is finally here! After months of research, practice, and hard work, even though the winning team gets to win the competition. The best part of these Competitions is that everyone who has invested in these Competitions is a winner in themselves, as everyone has got to learn something or other from it.
5:45-RESULTS OF THE FINALS ARE OUT!
Nirma University emerged as the winners of 5th TNNLU-CCI National Moot Court Competition, 2023.
The Runners-up were National Law University, Delhi.
The Best Memorial was won by Symbiosis, Pune
The Best Speaker was given to UPES, Dehradun
The Best Researcher was awarded to Maharashtra National Law University, Mumbai
This marks the end of the 5th TNNLU-CCI Moot Court Competition, 2023. After successfully conducting the very 5th edition of this moot the Moot Court Committee has had an enthralling experience. We hope that during the course of the Competition, the participants found chances to grow, and developed fondness for the law. At the end of these two days, we sincerely hope that we have been able to deliver the expectations that the participants and the judges had from us. See you all next year, in the 6th edition of this Competition!
Signing off Ayush Shukla and Anish Mishra!
