5 DSNLU-CCI National Moot, 2019 Winner Team Memorial - Respondent in The Hon'ble Avalon Company Law Appellate Tribunal at Avalon

SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 1 Friday, January 21, 2022

Printed For: Tarang Ajmera, Rajiv Gandhi National University of Law
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
5th DSNLU-CCI National Moot, 2019

Winner Team Memorial - Respondent
In the Hon'ble Avalon Company Law Appellate Tribunal at Avalon

Appeals Filed Under § 53B of the Avalon Competition Act, 2002
Appeal No. …/2019
Gollum Paper Mills. . . Appellant;
Versus
Competition Commission of Avalon and Others. . . Respondent.
Clubbed With
Appeal No. …/2019
Shadowfax Industries. . . Appellant;
Versus
Competition Commission of Avalon and Others. . . Respondent.
Memorial for Appellants
TABLE OF CONTENTS
I NDEX OF AUTHORITIES II
STATEMENT OF JURISDICTION V
STATEMENT OF FACTS VI
STATEMENT OF I SSUES VIII
SUMMARY OF ARGUMENTS IX
ARGUMENTS ADVANCED 1
1: THAT THE AGREEMENT ENTERED INTO BY GOLLUM WITH SHADOWFAX IS 1
ANTI-COMPETITIVE UNDER §3 OF THE ACT
[1.1] The vertical agreement is anti-competitive in nature 1
[1.2] The agreement has caused an appreciable adverse effect on 2
competition
2: THAT GOLLUM HAS ABUSED ITS DOMINANT POSITION UNDER §4 OF THE 4
ACT
[2.1] Gollum is dominant in the relevant market 4
[2.2] The actions of Gollum amount to abuse under §4 of the Act 7
3: THAT THE PENALTY IMPOSED BY CCA ON GOLLUM IS REASONABLE AND 10
HENCE, SUSTAINABLE
[3.1] Turnover under §2(y) of the Act implies turnover of the 10
enterprise and not relevant turnover
[3.2] That the aggravating factor justify the quantum of penalty 11
imposed on Appellant
4: THAT THE CCA'S ORDER APPROVING THE COMBINATION OF GOLLUM AND 12
BAIN IS JUSTIFIED
[4.1] Failing Firm Defence is applicable 13
[4.2] There has been no Adverse Appreciable Effect on Combination as 15
a result of this acquisition
[4.3] This combination will also lead to additional social benefits 16
PRAYER X
INDEX OF AUTHORITIES
[A.] INDIAN CASES
1. Atos Worldline v. Verifone India, Case 56/2012 (CCI) 11
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2. Automobiles Dealers Association Hathras v. Global Automobiles Ltd, 2012 15

CompLR 827 (CCI).
3. Belaire Owners Association v. DLF Ltd., Case 19/2010 (CCI). 10
4. Competition Commission of India v. SAIL, (2010) 10 SCC 744 (India) 16
5. GKB Hi Tech Lenses Pvt. Ltd. v. Transitions Optical India Pvt. Ltd., Indlaw 11
Case 55/2012 (CCI).
6. Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 : AIR 1970 SC 11
253
7. Kapoor Glass Pvt. Ltd. v. Schott Glass India Pvt. Ltd., Appeal 45/2012 6
(COMPAT).
8. Kier Group Plc & Ors. v. Office of Fair Trading, (2011) CAT 3 11
9. Noida Software Technology Park Ltd v. Star India Pvt Ltd and Ors, Case 8
30/2017 (CCI)
10. Prints India v. Springer India Pvt. Ltd., Case 16/2010 (CCI) 10
11. Shamsher Kataria v. Honda Seil Cars India Ltd. And Ors., Case 3/2011, 15
(CCI).
12. Shri Vinay Kala & Smt. Mina Kala v. D.L.F. Ltd., Case 13/2016 (CCI) 11
13. Surinder Singh Barmi v. B.C.C.I., Case 61/2010 (CCI) 11
[B.] INTERNATIONAL CASES
1. AKZO Chemie v. Commission, 1991 E.C.R. I-3359 12
2. Brown Shoe Co v. US, 370 US 294, 331-346 (1962). 13
3. Citizen Publishing Co v. US, 394 US 131, 137-138 (1969). 19
4. Eastman Kodak v. Image Tech. Serv., 504 U.S. 451 (1992). 11
5. Franklin v. Parke, Case 24/67 14
6. Hoffmann-La Roche & Co. AG v. Commission, 1979 E.C.R. 461 12
7. Hugin Kassaregister A.B. and Hugin Cash Registers Ltd v. Commission, 11
1979 E.C.R. 1869
8. IMS Health v. NDC Health, 2004 E.C.R. I-5039. 10
9. International Shoe Co v. FTC, 280 US 291 (1930) 13, 14
10. Nederlandsche Banden-Industrie Michelin v. Commission, 1983 E.C.R. 11
3461.
11. Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und 8, 9
Zeitschriftenverlag GmbH & Co. K, Mediaprint Zeitungsvertriebsgesellschaft
mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG, 1998
E.C.R I-7791.
12. Sirena v. Eda, Case 40/70 15
13. United Brands Co. v. Commission, 1978 E.C.R. 207. 12
14. United States v. E.I. Du Pont de Nemours & Co., 351 U.S. 377 (1965) 11
15. US v. General Dynamics Corp, 415 US 504 (1974) 13
[C.] OTHER AUTHORITIES
1. Barriers to Entry and Exit in Competition Policy, OFT Research Paper 2, p. 16
57-59, Office of Fair Trading from London Economics.
2. BBI/Boosey and Hawkes: Interim Measures, 1987 OJ L 286/36. 13
3. BBI/Boosey and Hawkes: Interim Measures, 1987, O.J. L 286/36 (EC) 13
4. David S. Evans & A. Jorge Padilla, Excessive Prices: Using Economics to 15
Define Administrable Legal Rules, (2004).
5. Directorate for Financial And Enterprise Affairs Competition Committee: 3 8
Roundtable, Refusal to Deal, 04 Oct. 2007, (2007) 100 (DAF/COMP/WD),
6. Nazzini, Abuse Beyond Exclusion: Exploitation and Discrimination Under 15
Article 102 TFEU, (2005)
-----------------------------------------------------------------------------------------------------------------------------------------------------------
7. O'Donoghue et al., The Law and Economics of Article 82 EC 122 (1st ed. 16
2006)
8. OECD Roundtable On Abuse Of Dominance And Monopolization, available 7
at http://www.oecd.org/competition/abuse/ (last accessed 01.02.2019)
9. OECD: Policy Round Tables, Refusal to Deal, 3 Sep. 2009, (2007) 46 8
(DAF/COMP), available at https://www.oecd.org/daf/43644518.pdf (last
accessed 01.02.2019).
10. Treaty on the Functioning of the European Union Art. 102, Dec. 13, 14
2007, 2010 O.J. (C 83).
[D.] JOURNALS
1. Article 2, EC Merger Resolution No. 139/2004. 3, 14
2. Council Regulations Guidelines on Vertical Restraints (2010), O.J. (C 3
130/1) (EC).
3. Dr. Atilano Jorge Padilla, The Role Of Supply-Side Substitution In The 3, 8
Definition of the Relevant Market In Merger Control, A Report for DG
Enterprise A/4, European Commission (2001)
4. Ezrachi and Gilo, Are Excessive Prices Really Self-Correcting?, JOUR. OF 9
COMPETITION LAW AND ECONOMICS 249, 255 (2010).
5. Ezrachi and Gilo, Excessive Pricing, Entry, Assessment, and Investment: 9
Lessons from the Mittal Litigation, JOUR. OF COMPETITION LAW AND
ECONOMICS (2010).
6. Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC 12
Treaty to Abusive Exclusionary Conduct by Dominant Undertakings, O.J.
2009 (C 45)7 (EC)
7. U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines 4, 14
§ 11(2010).
STATEMENT OF JURISDICTION
Appeal No. …/2019 [I]
&
Appeal No. …/2019 [II]
With regard to the circumstances that have been presented in the instant case, the
Respondents humbly submit to the jurisdiction in response to the appeals filed by the
Appellant against the order of the CCA passed under §27(b) of the Competition Act,
2002 and §31(1) of the Competition Act, 2002.
The Appellant have approached the Hon'ble Tribunal under §53B of the Avalon
Competition Act, 2002 which exercises its jurisdiction to hear Appeal, aggrieved by
any direction, decision or order referred to in clause (a) of §53A passed by the
Commission.
STATEMENT OF FACTS
BACKGROUND OF DISPUTE
1. Avalon is a republic with 29 states. In 1991, the Government of Avalon enacted
the Avalon Competition Act, 2002; and in the years 2014 - 2015, Avalon Insolvency
and Bankruptcy Code (hereinafter referred to as “AIBC”) was enacted. The
Government also laid heavy emphasis on environmental regulations and made stricter
norms for industries based on forest assets with a view to divert attention to
alternatives.
PARTIES TO THE DISPUTE
2. Shadowfax Industries is a leading printing and publishing house in Avalon and
started its paper production unit with its production capacity of 14,000 MTPA which is
second only to Gollum Paper Mills' capacity of 24,000 MTPA.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
3. In 2014, the paper production unit of Shadowfax went through an insolvency

process and was acquired by Bain Industries. This acquisition proved to be a game
changer for Bain, which upgraded its paper production capacity to 18,000 MTPA as a
result of the acquisition.
DISPUTE
4. In November 2017, Shadowfax placed an order for about 4000 MTs (metric
tonnes) of a special quality glazed paper to be supplied in 4 tranches over the course
of six months. Shadowfax had won a contract for Ostrich Publications' global
assignments. Gollum supplied the first tranche of 1000 MTs of glazed paper in 15
days. Thereafter, Gollum informed Shadowfax that there has been a breakdown in the
machinery which would lead to delay or entail an increased price of 1.5 times the price
originally agreed upon. Even after negotiations, Gollum did not reduce the price. In
the meantime, Shadowfax also imported some quantity of glazed paper from China to
meet the demands of Ostrich Publications.
5. Shadowfax filed Information before the CCA alleging abuse of dominant position,
and violation of § 3 of the Competition Act. By way of a Supplementary Information, it
was also submitted to the CCA that Ostrich Publications had terminated its contract
with Shadowfax on account of delayed supplies and sub-standard quality and invoked
the arbitration proceedings and instituted claims for damages.
6. The CCA found that there was a prima facie case of contravention of the
Competition Act, and directed the Director General (hereinafter referred to as “DG”) to
investigate the matter.
INVESTIGATION BY DIRECTOR GENERAL
7. The DG in its investigation, found that there was a long breakdown in one of the
units of Gollum that resulted in huge losses to it. The DG found that while the unit of
Gollum that had broken down was the only one with the capacity to produce the
special quality of glazed paper required by Shadowfax, Gollum could have easily
started production at any of its other units at a minimal additional cost.
8. The DG found that Shadowfax had reached out for price quotations to other small
paper mills of which Frodo Paper Mills, in their price quotation, had assured that they
would be able to meet the demand. The DG in its report, held Gollum to be dominant
in the market for glazed paper in Avalon, and found them to be liable for charging
exorbitant prices.
COMPETITION COMMISSION OF AVALON
9. The CCA, after hearing the parties, agreed with the DG and found that Gollum
had to be in contravention of §3 and §4 of the Competition Act and also imposed a
penalty amounting to 6 percent of Gollum's average turnover for the preceding three
years.
10. Eventually, insolvency process had to commence for Gollum, and Bain got
interested in acquiring the assets owned by Gollum.
11. Bain filed a notice under §6 of the Competition Act before the CCA for seeking
approval of their proposed acquisition of Gollum. Shadowfax made submissions
opposing the proposed acquisition and submitted that if allowed, the combined entity
of Bain and Gollum would become super dominant in the market. However, the CCA
proceeded to approve the combination unconditionally.
APPEALS FILED
12. The following appeals have been filed in the present matter:
i. Gollum filed an appeal before the Appellate Tribunal (hereinafter referred to as
“ACLAT”) against the order of the CCA penalizing it for abuse of dominance.
ii. Shadowfax filed an appeal before the ACLAT against the CCA's order approving
the acquisition of Gollum by Bain, stating it to be anti-competitive.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Owing to substantial overlap between the two appeals and keeping in mind
the commonality of the parties, the ACLAT decided to club the two appeals
and has listed both for final hearing on maintainability as well as merits.
STATEMENT OF ISSUES
APPEAL [I]
ISSUE I
WHETHER THE AGREEMENT ENTERED INTO BY GOLLUM WITH SHADOWFAX IS ANTI-
COMPETITIVE UNDER §3 OF THE ACT OR NOT?
ISSUE II
WHETHER GOLLUM HAS ABUSED ITS DOMINANT POSITION UNDER §4 OF THE ACT OR
NOT?
ISSUE III
WHETHER THE PENALTY IMPOSED BY CCA ON GOLLUM IS REASONABLE OR NOT?
APPEAL [II]
ISSUE IV
WHETHER THE CCA'S ORDER APPROVING THE ACQUISITION OF GOLLUM BY BAIN IS
JUSTIFIED OR NOT?
SUMMARY OF ARGUMENTS
1. THAT THE AGREEMENT ENTERED INTO BY GOLLUM WITH SHADOWFAX IS ANTI-
COMPETITIVE UNDER §3 OF THE ACT .
The vertical agreement entered into by Gollum with Shadowfax violates §3(4) of the
Act by a ‘refusal to deal’ because [1.1] the agreement is anti-competitive in nature as
it constructively refuses to deal and [1.2] the agreement has caused an appreciable
adverse effect on competition.
2. THAT GOLLUM HAS ABUSED ITS DOMINANT POSITION UNDER §4 OF THE ACT .
The findings of CCA is correct since Gollum has abused its dominant position u/§ 4
of the Act because [2.1] Gollum holds a dominant position in the relevant market as
rightly identified by DG and [2.2] it has abused its dominant position by charging
unfair prices, and, (ii), by creating entry barriers in the relevant market.
3. THAT THE PENALTY IMPOSED BY CCA ON GOLLUM IS REASONABLE.
The penalty imposed by CCA on Gollum is not unreasonable or arbitrary because
[3.1] the calculation of penalty on turnover is in accordance with ‘turnover’ as defined
u/§ 2(y) of the Act and [3.2] the aggravating factor justify the quantum of penalty
imposed on Gollum.
4. THAT THE CCA'S ORDER APPROVING THE ACQUISITION OF GOLLUM BY BAIN IS
JUSTIFIED.
The approval given by the CCA to the acquisition of Gollum by Bain is not in
contravention with § 5 and § 6 of the Act, because [4.1] the ‘Failing Firm Defence’ is
applicable, [4.2] there is no appreciable adverse effects on competition and [4.3] the
combination will also lead to additional social benefits.
ARGUMENTS ADVANCED
1: THAT THE AGREEMENT ENTERED INTO BY GOLLUM WITH SHADOWFAX IS ANTI-
COMPETITIVE UNDER §3 OF THE ACT .
1. Any vertical agreement made under §3(4) of the Act would be anti-competitive if
it, in accordance with §3(1), causes an appreciable adverse effect on competition. It is
most humbly submitted before the Hon'ble Tribunal that the vertical agreement
entered into by Gollum with Shadowfax violates §3(4) of the Act by a ‘refusal to deal’
because [1.1] the agreement is anti-competitive in nature as it constructively refuses
to deal with Shadowfax and [1.2] the agreement has caused an appreciable adverse
effect on competition.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
[1.1] THE VERTICAL AGREEMENT IS ANTI-COMPETITIVE IN NATURE.

2. A vertical agreement could be anti-competitive if it results in refusal to deal.1
Refusal is when an agreement restricts, or is likely to restrict, by any method the
persons or classes of persons to whom goods are sold or from whom goods are
bought.2 A refusal to deal can either be made by a single firm or upon an agreement
among firms not to deal with someone else.3
3. Further, it includes the situation when one firm refuses to sell to another firm, or
is willing to sell only under conditions that are deemed unacceptable. By supplying
less than the full amount requested, or by supplying irregularly or with long delays,
are included in ‘refusal to deal’.4 In the instant case, Gollum tacitly created such a
condition for Shadowfax that it was pushed into a situation where it was at a loss from
both the ends, hence, making the conditions ‘deemed unacceptable’.
4. The concept also covers instances of agreement when conditions are under
unreasonable, uneconomic5 or onerous which amounts to ‘constructive’ refusal to
deal.6 The charging of an exorbitantly high price in the middle of a contract would not
only be unreasonable on Shadowfax but also uneconomical since it will unnecessarily
increase the cost of production incurred by Shadowfax in fulfilling its contract with
Ostrich Publications.
5. Thus, Gollum has constructively refused to deal with Shadowfax within the
meaning of ‘refusal to deal’ u/§3(4)(d) of the Act.
[1.2] THE AGREEMENT HAS CAUSED AN APPRECIABLE ADVERSE EFFECT ON COMPETITION.
6. That under §19(3)7 , the Act specifies certain conditions to assess the negative
and positive effects on the market.8 Further, in Oscar Bronner v. Mediaprint,9 the
essential aspects therein considered for refusal to deal were:
1. Whether the product refused was indispensable;
2. Whether there is an effect on competition;
3. Whether any harm is caused to the customer.
[1.2.1] The product refused was indispensable for Shadowfax.
7. It is most humbly submitted before the Hon'ble Tribunal that Gollum's special
quality glazed paper was indispensable for Shadowfax to complete its contract with
Ostrich Publications. That the refused product was indispensable means that the
refused product must constitute an objectively indispensable input for such
competitors, and not merely a particularly suitable or convenient one. Put another
way, there must be no economically viable alternatives to the refused input.10 In the
instant case, even though Frodo Paper Mills' was willing to provide its supply, it had to
develop its capacity to meet its requirement.
[1.2.2] Gollum's conduct has caused detrimental effect to competition.
8. It is most humbly submitted before the Hon'ble Tribunal that Gollum's conduct
was detriment for the healthy competition to prevail in the identified relevant market.
Gollum was a dominant enterprise in the relevant market and by abusing its dominant
position; it refused to deal with Shadowfax. This assertion is based on the following
argument:
(i) Gollum's conduct created barriers to entry in the market.
9. §19(3) of the Act considers whether any agreement u/§3 creates any entry
barrier in the relevant market or not. The agreement, in this case, creates entry
barriers in the relevant market so as to make it fall within §3 r/w §19(3) of the Act.
10. It is most humbly submitted that high prices, in and of themselves, do not
attract new entry.11 Essentially, it is the post-entry price, and not the pre-entry price
that potential entrants consider when deciding whether to enter the market.12 This is
so because incumbents can cut their prices as soon as a new rival arrives and the
potential entrant is aware of this risk. It is the expected post-entry price and not the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
pre-entry price that affects the entrant's decision to enter the market. Hence, entry
will occur only when the entrant knows it is more efficient than the incumbent. This
dynamic interaction is a flaw within the theory of contestable markets, which assumes
the incumbents do not react to entry by cutting prices in order to keep their market
share.13 Actually, such reaction might be main deterrent for entrants. Gollum has
already set a deterring high limit of pricing and it may continue to charge excessive
pricing, especially given the fact that it is attributed with the production of its special
quality glazed paper.
[1.2.3] Gollum's conduct has caused harm to Shadowfax.
11. The European Commission considers that consumer harm may arise if the
undertaking which requests supply does not intend to limit itself essentially to
duplicating the goods or services already offered by the dominant undertaking on the
downstream market, but intends to produce new or improved goods or services for
which there is a potential consumer demand or is likely to contribute to technical
development.14 In the instant case, Shadowfax was credited with revolutionizing the
printing industry in Avalon by continuously evolving techniques that are cost efficient
and innovative.15
12. Moreover, Gollum imposed an unreasonable condition on Shadowfax which
directly resulted in the termination of the contract with Ostrich Publications.16
Moreover, arbitration proceedings were also invoked against Shadowfax for violation of
contractual terms and damages were also claimed for the same.17
Thus, it is most humbly submitted before the Hon'ble Tribunal that Gollum
has violated § 3(4) the Act because the agreement formed with Shadowfax is
anti-competitive in nature which results in appreciable adverse effect on
competition.
2: GOLLUM HAS ABUSED ITS DOMINANT POSITION UNDER §4 OF THE ACT .
13. The §4(1) of the Act states that no enterprise or group shall abuse its dominant
position.18 The CCA has found Gollum to have contravened §4(2)(a)(ii) of the Act by
charging exorbitant price from Shadowfax.19 It is submitted that the findings of CCA
are correct because [2.1] Gollum is dominant in the relevant market and [2.2] Gollum
has abused its dominant position in the identified relevant market.
[2.1] GOLLUM IS DOMINANT IN THE RELEVANT MARKET.
14. The dominant position of an enterprise or a group has to be established within
the identified relevant market20 which is essential for identifying the abuse of
dominance.21 When determining what constitutes the relevant market, due regard
must be given to both the relevant product as well as geographic market.22
[2.1.1] The DG has correctly identified the relevant market.
15. It is most humbly submitted before the Hon'ble Tribunal that the DG has
correctly identified the relevant market as the market for glazed paper.23 This was,
further, concurred by the CCA while hearing the matter.24
(i) Relevant Product Market
16. The relevant product market is defined as a market comprising all those
products or services which are regarded as reasonably interchangeable or substitutable
by the customer, by reason of the characteristics of the product or service, the prices
and the intended use.25 The relevant product market is to be looked at from both
demand26 and supply perspectives27 based on the characteristics of the product, its
price and intended use.28
17. In the instant case, the demand is essentially for the glazed paper which under
no circumstances can be substituted by a normal paper because of its distinct
characteristics. Moreover, there are significant price differences between a paper and a
glazed paper and it requires a significant investment in glazed paper production.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
18. Further, the definition given by DG is in line with the trend of preferring narrow
market definition by the competition authorities in U.S.29 and EU.30 The CCI also
defined narrowly the relevant market in the DLF case wherein it was delineated to be
the ‘high- end residential apartments in Gurgaon.31
19. Taking guidance from the authorities cited above, the identified relevant market
is the ‘market for glazed paper’ in Avalon.
[2.1.2] Gollum is dominant in the identified relevant market.
20. It is most humbly submitted that Gollum holds a dominant position in the
relevant market because firstly, Gollum operates independently of competitive forces
prevailing in the relevant market, and secondly, Gollum can affect its competitors or
consumers or the relevant market in its favour.32
(i) Gollum operates independently of competitive forces prevailing in the relevant
market.
21. It is an established principle that a firm would be able to behave independently
of competitive forces, if it has acquired a position of economic strength.33 This position
of economic strength can be understood to be one of substantial market power.34 In
the case of AKZO Chemie v. Commission,35 the European Court of Justice held that
market power also essentially depends upon the size and market power of the others
operating in the market. In the instant case, small players existed in the market which
was nowhere close to the huge productive capacity enjoyed by Gollum.
22. Furthermore, the CCI stated that independence in the context of dominance
does not mean absence of any other player in a relevant market.36 The size and
strength of an undertaking could be relevant when establishing dominance, which was
stated in the case of Michelin.37 In the instant case, Gollum's productive capacity was
the highest in the relevant market.38
23. Thus, the Appellant was able to effectively operate in the market in the absence
of any significant competition and could thus work independently.
(ii) Gollum can affect competitors, consumers or the relevant market in its favour.
24. An enterprise should have the ability to engage in conduct that excludes
competition or prevents the entry of newcomers into the relevant market, and should
be able to influence the relevant market in its favour.39
25. In BBI/Boosey and Hawkes,40 the Commission referred to the goodwill and
reputation of the firm and listed “the strong buyer preference for B&H instruments” as
“other factors which tend to support a preliminary finding of dominance”.41 In the
instant case, it is evident from the fact that Gollum enjoyed considerable reputation in
the market since Shadowfax chose to deal with Gollum at an unfair price since no
other player were as competitive in their products as Gollum. Furthermore, Gollum
enjoys large economies of scale which hinders entry of entrants in the relevant
market.42
26. Therefore, Gollum has acquired a dominant position in the relevant market, as
per the second explanation to §4 of the Act, read with §19(4).43
[2.2] THE ACTIONS OF GOLLUM AMOUNT TO ABUSE UNDER §4 OF THE ACT .
27. It is most humbly submitted before the Hon'ble Tribunal that Gollum has
abused its dominant position by contravening §4(2)(a)(ii) of the Act. This assertion is
based on the grounds that (i) charging unfair prices are exploitative in nature, and,
(ii), its conduct created entry barriers in the relevant market.
[2.2.1] Charging unfair prices are exploitative in nature.
28. It is most humbly submitted that Gollum charged an unfair price from
Shadowfax which amounts to abuse of exploitative nature under §4 of the Act.
(i) Price charged is unfair.
29. It is most humbly submitted that the Appellant has contravened §4(2)(a)(ii) of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the Act by charging unfair prices which are abusive in nature. In a case decided by the
Court of Justice of the European Union, in United Brands Co. v. Commission of the
European Communities,44 for an uncompetitive behaviour, the price has to be abusive
which can be determined by a two-fold test that considers whether (1) the price-cost
margin is excessive and (2) the price imposed “is either unfair in itself or when
compared to competing products.” This seems to be a settled principle of law.45
30. In the instant case, the price-cost margin is excessive since Gollum could have
started its production at a minimal additional cost as found by the DG report,46 yet it
charged a whopping 1.5 times the price originally agreed upon.
31. In common parlance, “unfair” is something which is marked by injustice,
partiality, or deception. In the instant case, Gollum was blatantly unfair in charging
the price of its product which is a whopping 1.5 times the price originally agreed
upon47 even when it was bound by the contractual obligation with Shadowfax. Further,
in United Brands case,48 exploitative or unfair prices were held to be the ones where
the dominant undertaking is “reaping trading benefits which it would not have reaped
if there had been normal and sufficiently effective competition.”49
32. In the instant case, Gollum faced an insufficient effective competition in the
market. Furthermore, it recklessly created an abnormal condition by delaying the
procurement of the faulty part when the production unit was broken whose direct
consequence was borne by Shadowfax.
(ii) Charging unfair price is an abuse.
33. Article 102(a) of the Treaty on the Functioning of the European Union (TFEU)
explicitly stipulates that abuse of a dominant position may consist of “imposing unfair
purchase or selling prices.”50
34. The imposition by an undertaking in a dominant position directly or indirectly of
unfair purchase or selling prices is an abuse.51 European competition law condemns
high prices. This was already implicit in Parke, Davis,52 where the Court stated that the
sale price of a product may be regarded as a factor to be taken into account in
determining the possible existence of an abuse. And it was made explicit in Sirena v.
Eda,53 where it was established that the price level of a product may determine an
abuse of a dominant position when it is particularly high. An important common
feature of cases in which excessive prices have been found is that the price was not
merely above the relevant benchmark, but was significantly above it.54
(iii) Exploitative conduct leads to loss of consumer welfare.
35. The unconstrained power to charge supra-competitive prices in the long term
may reduce the incentives of the dominant firm to increase its own productive
efficiency and to invest in product improvements.55 An increase in prices above the
competitive level has two negative effects on consumer welfare: first, it transfers rents
from consumers to firms, as every consumer who purchases the goods and services in
offer pays more for them than in a competitive market. Second, it destroys rents by
forcing out of the market some consumers with relatively modest valuations.56 Thus,
by charging exorbitantly high prices, the Appellant is only enriching itself at the
expense of the customers, which is clearly against the welfare norms as well as
against the principle of dual entitlement.
[2.2.2] Gollum's conduct created entry barriers in the relevant market.
36. It is most humbly submitted before the Hon'ble Tribunal that the conduct of
Gollum created entry barriers in the identified relevant market. Advantages peculiar to
the dominant company constitute barriers to entry.57 In the instant case, Gollum
enjoyed considerable economies of scale which has the potential of creating entry
barriers in the relevant market. Moreover, the gap created in the price charged and the
benefit reaped out from considerable economies of scale, Gollum, infact created entry
barriers in the relevant market.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Economies of Scale.

37. It has been explained in an OFT report (Office of Fair Trading)58 that under
modern industrial organization theory, economies of scale can operate as strategic
entry barriers. According to this theory, a combination of economies of scale and large
sunk costs can be a grave deterrent to market entry. When a market display
considerable positive returns to scale, the largest firm will have a significant
advantage over firms who have not yet reached the same level of production or
distribution, and that may give rise to barriers to entry.59 It was recognised by the ECJ
in the United Brands60 that economies of scale operate as a barrier to entry.
38. In the instant case, Gollum has huge productive capacity of 24,000 MTPA which
allows it to enjoy considerable economies of scale because of low average cost of
production. In arguendo, there was an ‘unforeseen’ breakdown in its production unit, it
still could have started its production at a ‘minimal additional cost’.61 Charging an
exorbitant price on the assertion that it was due to the increased input cost is
unfounded. Hence, by enjoying the considerable economies of scale and creating a
high pricing limit, it tends to create entry barriers in the identified relevant market.
It is, thus, most humbly submitted before the Hon'ble Tribunal that Gollum
was not only in the dominant position in the identified relevant market, that
is, market for glazed paper in Avalon but has also abused its dominant
position within the meaning of §4(2)(a)(ii) of the Act.
3: THAT THE PENALTY IMPOSED BY CCA ON GOLLUM IS REASONABLE AND HENCE,
SUSTAINABLE.
39. It is most humbly submitted that the imposition and quantum of punishment
as directed to be paid by the Appellant are sustainable by way of two fold arguments:
[3.1] TURNOVER UNDER §2(Y) OF THE ACT IMPLIES TURNOVER OF THE ENTERPRISE AND
NOT RELEVANT T URNOVER.
40. The term ‘turnover’ is of great significance for §27(b) and so its interpretation
is essential as to whether it means turnover of relevant product or of the total
enterprise. §2(y) of the Act gives an inclusive definition of the word ‘turnover’ which
provides that it includes value of sale of goods or services. It is pertinent to note that
the term ‘turnover’ has not been qualified by the word ‘relevant market’. Therefore,
the term ‘turnover’ contemplated by the Act requires literal interpretation and that
means the turnover recorded in the financial books of a person or enterprise or a
member of cartel is the turnover on which the penalty u/§27(b) is to be calculated.
41. The fact that the term ‘turnover’ is interpreted as turnover of entire enterprise
is very clear in CCI's order in the DLF Case,62 As it has been clearly enunciated in the
factsheet that CCA imposed the penalty amounting to 6% of Gollum's ‘average’
turnover for the preceding three years.63 This makes the intent of the CCA very clear to
impose the same on the entire enterprise.
42. In Kapoor Glass Private Limited v. Schott Glass Private Ltd.64 , the CCA in its
order has levied a penalty of 7% of average turnover of preceding three year for
contravention of the provisions of the Act. In case of Print India v. Springer (India)
Pvt. Ltd.,65 the Commission levied a penalty of the average of the turnover for the last
three preceding financial years upon Springer India for deliberately entering into
agreement which led to the foreclosure of the competition and consequently, abuse of
its dominance.
43. In light of the authorities cited, it is evident that the Commission takes into
consideration the entire turnover of the company or enterprise and not the relevant
turnover.
[3.2] THAT THE AGGRAVATING FACTOR JUSTIFY THE QUANTUM OF PENALTY IMPOSED ON
APPELLANT.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
44. In Hindustan Steel Ltd. v. State of Orissa,66 it was observed that if there is
discretion, authority is bound to take into account aggravating or mitigating
circumstances and exercise discretion laid down under the law, judicially. It is humbly
submitted that the quantum of penalty imposed on the Appellant is justified because
of following aggravating factors:
[3.2.1] Strength and Size of the Appellant.
45. It is reasonable for a bigger undertaking to receive a more severe penalty than
a smaller company.67 Additionally, it is also clear from the facts of the case that the
Appellant is the leading paper manufacturer in the market of Avalon with a total
capacity of 24,000 MTPA.68 Thus, imposing a penalty of 6% will not be
disproportionate owing to the size and market power enjoyed by the Appellant.
[3.2.2] Nature of Infringement.
46. The Appellant's conduct amounts to contravention of §3 and §4 of the Act. By
charging exorbitant prices and refusing to supply paper, Gollum Paper Mills sought to
exploit the dire need of the special quality glazed paper which could have only be
supplied by them.
Moreover, their conduct was exploitative and exclusionary in nature which posed a
serious threat to the competition in the relevant market.
47. The nature of infringement is serious and warrants harsh and strict penalty on
the Appellant. §27(b) of the Act which expressly provides for the Commission to
impose such penalty as it may deem fit not more than 10% of the average of the
turnover for the last three preceding financial years, upon each of such person or
enterprises which are parties to such agreements or abuse.69
48. In the instant case, the quantum of 6% of average turnover of the preceding
three years is well within the upper limit of 10% and has been imposed keeping in
mind all the aggravating and relevant factors in the paper market of the enterprise.
It is, therefore, most humbly submitted before the Hon'ble Tribunal
that the imposition & quantum of penalty as imposed on the appellant
are sustainable on account of violation of §3 and §4 of the act by the
Appellant. Moreover the penalty of 6% of average turnover for preceding
three years has been fixed after considering all the aggravating factors.
4: THAT THE CCA'S ORDER APPROVING THE COMBINATION OF GOLLUM AND BAIN IS
JUSTIFIED.
49. §5 and §6 of the Act states that “combination which causes or is likely to cause
an appreciable adverse effect on competition within the relevant market in India”70
shall be void. It is most humbly submitted before the Hon'ble Tribunal that the CCA
has not erred in approving the combination of Gollum and Bain and the same shall be
upheld.
50. Mergers and acquisitions are some of the preferred techniques for implementing
strategic corporate restructuring transactions. In the present instance, horizontal
merger, that is, the merger between the firms with one or more products in direct
competition has taken place and the same is not in contravention with the provisions
of the Act. This is being contended on the grounds that [4.1] Failing Firm Defence is
applicable, [4.2] there is no Adverse Appreciable Effect on the Competition and [4.3]
this combination will also lead to additional social benefits.
[4.1] FAILING FIRM DEFENCE IS APPLICABLE.
51. A failing firm is a firm that has been consistently earning negative profits and
losing market share to such an extent that it is likely to go out of business. The
“Failing Firm” Doctrine (hereinafter referred to as “FFD”) determines whether the
failing or weakened status of a merging party renders it an insignificant competitor
within the relevant market. This acts as a valid argument in cases of combination of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
two or more entities.

52. The Failing Firm Doctrine originated from the United States Supreme Court
decision in International Shoe Co. v. FTC71 , where it was held that the acquisition by a
competitor of a firm with a depleted resource base, whose prospects of rehabilitation
are remote, does not violate antitrust laws if there are no other prospective purchasers
for such a firm. This doctrine has been then reaffirmed in several other decisions as
well72 .
53. In the case of Citizen Publishing Co. v. US73 , J. Douglas noted that order to take
benefit of the said doctrine, the following criteria has to be met: (a) the acquired firm
has failed or is likely to fail absent the merger; (b) there are no alternative purchasers
posing a less competitive threat; and (c) the alleged failing firm cannot be
successfully re-organised under bankruptcy laws74 . With the passage of time policy
discussions on this doctrine have reached the following conclusion as to the conditions
precedent for the applicability of this doctrine and these conditions have been satisfied
in the present instance:
[4.1.1] Inevitable exit of the target entity.
54. The parties claiming the benefit of FFD will have to show that the target entity
would be in the near future, be forced out of the market because of financial
difficulties and/or a change in the corporate structure, if not taken over by another
enterprise. In the present instance, Gollum had initiated insolvency proceedings.
55. Resolution Professional of Gollum, a party appointed as part of the proceedings,
found that Gollum would have to close its operations and exit the market in the near
future if the loans and liabilities were not resolved or restructured75 . Therefore, the exit
if the acquisition in dispute does not take place, there will be inevitable exit of Gollum
from the market.
[4.1.2] Absence of a realistic less anti-competitive alternative.
56. It is also essential for the parties claiming FFD to establish that a less anti-
competitive alternative to the proposed acquisition is not available. In other words, the
target could not realistically have been taken over by another business that either is
not a competitor of the target or has a lower market share than the acquirer in the
transaction being considered.
57. In the present instance, there is no other party in the market who can
effectively take control over Gollum and save its assets from leaving the market. Bain
is the second largest producer in terms of the production capacity and is second only
to Gollum and therefore, is the only entity possessing the required capabilities to
acquire Gollum.
[4.1.3] Exit of assets of target entity from the market.
58. Additionally, it also has to be substantially proven that in the absence of the
disputed acquisition; the assets of the failing firm would inevitably exit the market.
This is also established in the present scenario. As has been submitted earlier,
Resolution Professional of Gollum found that Gollum would have to close its operations
and exit the market in the near future if the loans and liabilities were not resolved or
restructured76 . Also, Gollum had the largest production capacity in the market and if
the entity is declared as an insolvent and is forced to exit the market, there would be a
huge loss in the production capacity in the market in general. Therefore, if the
acquisition is stopped, the exit of assets of Gollum is inevitable.
59. The Failing Firm Defence can be found in the 2010 Merger Guidelines77 of the
United States. Building on the standards articulated in International Shoe Co. case78 ,
Citizen Publishing79 case, and prior versions of the Guidelines, the 2010 Guidelines
provide that a “merger is not likely to enhance market power if imminent failure … of
one of the merging firms would cause the assets of that firm to exit the relevant
market.”80 On the similar lines, Europe developed a concept of a “rescue-merger”
-----------------------------------------------------------------------------------------------------------------------------------------------------------
which was regarded as a version of the FFD81 . This concept enables the Commission to
clear a concentration even though a dominant position is created or strengthened in its
aftermath.
60. This aforementioned discussion clearly established the prevalence of this
doctrine in not just Avalon but also across the world. Therefore, it is most humbly
submitted to the Hon'ble Tribunal that since the pre-requisite conditions have been
satisfied, the FFD is applicable in the present scenario and thus, the order approving
the acquisition is justified and cannot be struck down.
[4.2] THERE HAS BEEN NO ADVERSE APPRECIABLE EFFECT ON COMBINATION AS A
RESULT OF THIS ACQUISITION.
61. In the Indian jurisprudence involving competition law, the primary test for
determining the competitiveness is the “adverse appreciable effect” test which is also
embodied in the wording of the Act. In determining whether an agreement causes
AAEC or not, CCA considers the “Positive” and “Negative” factors that are listed under
§ 19(3) of the completion act82 . Additionally, all the factors should be looked at
together to analyse the net impact on competition as entailed by the language of the
Act83 . In Automobiles Dealers Association v. Global Automobiles Limited & Anr.84 , CCI
held that it would be prudent to examine an action in the backdrop of all the factors
mentioned in § 19(3). The agreement should be the cause of the adverse effect on the
competition.
62. In the present scenario, the acquisition of Gollum by Bain will not cause any
appreciable effect on the competition in the market. The agreement does not create
entry barriers, or drive out existing competition; does not foreclose the competition by
hindering entry into the market85 . The existing agreement cannot be said to drive
existing competition out of the market since other suppliers and entities also were
existing simultaneously. It was categorically stated in the report submitted by the
Director General (DG) that there were more players in the market who had the
capacity to produce the special quality of glazed paper, specifically atleast 3 other
players, including an entity named Frodo Paper Mills86 .
63. Additionally, due to the implementation of the New Environmental Policy, there
was also a surge in imports of paper, which currently accounts for about 20 percent of
the total consumption of paper in Avalon87 thereby opening the global players in the
domestic market of Avalon. Entry barriers at the supplier level are relevant to
establishing whether there is real foreclosure88 and since, it has been established that
this combination by acquisition of Gollum by Bain will not create any barriers for entry
into the market or any foreclosure, and consequently will have no AAEC in the market.
[4.3] THIS COMBINATION WILL ALSO LEAD TO ADDITIONAL SOCIAL BENEFITS.
64. It is most humbly being submitted before the Hon'ble Tribunal that the
acquisition of Gollum by Bain not only does not lead to AAEC but, on the contrary, also
creates more employment opportunities and subsequently leads to other social
benefits. The main objective of competition law is to promote economic efficiency
using competition as one of the means of assisting the creation of market responsive
to consumer preferences89 .
65. Without the disputed acquisition, Gollum would have to close its operations and
exit the market in the near future if the loans and liabilities were not resolved or
restructured.90 This would mean that the jobs of the people employed in the industries
would be at stake. Being a leading player in market (largest production capacity), the
number of people involved in the entity will also be huge. The closure of this entity will
lead to the unemployment of a large number of people. On the other hand, the
acquisition of Gollum by Bain will not only protect the jobs of those originally
employed in Gollum, but will also create a plethora of jobs owning to the increase in
potential, capacities and overall efficiency. Subsequently, this will also contribute to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the increase in the standard of living of the associated persons.

Therefore, it is most humbly submitted before the Hon'ble Tribunal that the
acquisition of Gollum by Bain is justified and the order of the CCA
unconditionally approving the said combination is liable to be upheld.
PRAYER
APPEAL [I]
Wherefore, in the light of the facts stated, issues raised, authorities cited
and arguments advanced, it is most humbly prayed and implored before the
Hon'ble Tribunal that it may be graciously pleased to adjudge and declare that
-
1. Gollum's conduct is in contravention to §3 of the Act;
2. Gollum has contravened §4(2)(a)(ii) of the Act;
3. The penalty of 6% on average turnover for preceding three years is reasonable
and hence, it should be imposed.
And/or Pass any other Order, Direction, or Relief that it may deem fit in the
best interest of Justice, Equity and Good Conscience.
All of which is humbly and respectfully submitted.
APPEAL [II]
Wherefore, in the light of the facts stated, issues raised, authorities cited
and arguments advanced, it is most humbly prayed and implored before the
Hon'ble Tribunal that it may be graciously pleased to adjudge and declare that
-
1. The acquisition of Gollum by Bain is not anti-competitive u/§5 and §6 of the Act
and hence, should be approved.
And/or Pass any other Order, Direction, or Relief that it may deem fit in the
best interest of Justice, Equity and Good Conscience.
All of which is humbly and respectfully submitted.
1
§3(4)(d), Competition Act, 2002, Act No. 12, Acts of Parliament, 2002 (India).
2 Explanation (d), §3(4)(d), Competition Act, 2002, Act No. 12, Acts of Parliament, 2002 (India).
3 OECD Roundtable On Abuse Of Dominance And Monopolization, available at
http://www.oecd.org/competition/abuse/ (last accessed 01.02.2019).
4
OECD: Policy Round Tables, Refusal to Deal, 3 Sep. 2009, (2007) 46 (DAF/COMP), available at
https://www.oecd.org/daf/43644518.pdf (last accessed 01.02.2019).
5 Directorate for Financial And Enterprise Affairs Competition Committee: 3 Roundtable, Refusal to Deal, 04 Oct.
2007, (2007) 100 (DAF/COMP/WD), available at
http://ec.europa.eu/competition/international/multilateral/2007_oct_refusals_to_deal.pdf (last accessed
01.02.2019).
6 Noida Software Technology Park Ltd v. Star India Pvt Ltd and Ors, Case 30/2017 (CCI).
7
§19(3), Competition Act, 2002, Act No. 12, Acts of Parliament, 2002 (India).
8 ABIR ROY, COMPETITION LAW IN INDIA, 146 (2nd ed, Eastern Law House 2014).
9Oscar Bronner v. Mediaprint Zeitungs-und Zeitschriftenverlag, Mediaprint Zeitungsvertriebsgesellschaft and
Mediaprint Anzeigengesellschaft (1998) ECR I-7791.
10
Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. K, Mediaprint
Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG, (1998) ECR I-
7791.
11
Ezrachi and Gilo, Are Excessive Prices Really Self-Correcting?, JOUR. OF COMPETITION LAW AND ECONOMICS
249, 255 (2010).
12 Id.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
13
Ezrachi and Gilo, Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal Litigation,
JOUR. OF COMPETITION LAW AND ECONOMICS (2010).
14 IMS Health v. NDC Health, 2004 E.C.R. I-5039, ¶49.
15 ¶ 6, PAGE 1, STATEMENT OF F ACTS , 5TH DSNLU-CCI MO O T CO U R T COMPETITION, 2019.
16
¶ 10, PAGE 2, STATEMENT OF F ACTS , 5TH DSNLU-CCI MO O T CO U R T COMPETITION, 2019.
18
§4(1), Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
19
20 Explanation 2, §4(2), The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
21
Prints India v. Springer India Pvt. Ltd., Case 16/2010 (CCI).
22
§19 (5), The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
24
25
§2 (t), The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).; Atos Worldline v. Verifone India,
Case 56/2012 (CCI).
26 §19(7)(c), The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
27 GKB Hi Tech Lenses Pvt. Ltd. v. Transitions Optical India Pvt. Ltd., Indlaw Case 55/2012 (CCI).
28
Surinder Singh Barmi v. B.C.C.I., Case 61/2010 (CCI); Kapoor Glass Pvt. Ltd. v. Schott Glass, Case 22/2010
(CCI); United States v. E.I. Du Pont de Nemours & Co., 351 U.S. 377 (1965).
29 Eastman Kodak v. Image Tech. Serv., 504 U.S. 451 (1992).
30Hugin Kassaregister A.B. and Hugin Cash Registers Ltd v. Commission, 1979 E.C.R. 1869; United Brands v.
Commission, 1978 E.C.R. 207; Nederlandsche Banden-Industrie Michelin v. Commission, 1983 E.C.R. 3461.
31
Shri Vinay Kala & Smt. Mina Kala v. D.L.F. Ltd., Case 13/2016 (CCI).
32 Explanation (a), §4(2), Competition Act, 2002, Act No. 12, Acts of Parliament, 2002(India).
33United Brands Co. v. Commission, 1978 E.C.R. 207; Hoffmann-La Roche & Co. AG v. Commission, 1979 E.C.R.
461.
34
Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, O.J. 2009 (C 45)7.
35
AKZO Chemie v. Commission, 1991 E.C.R. I-3359.
36 Kapoor Glass Pvt. Ltd. v. Schott Glass India Pvt. Ltd., Appeal 45/2012 (COMPAT).
37 JONES ET AL ., EC COMPETITION LAW-T EXT, CASES AND MATERIALS 360 (2nd ed. 2004).
39§19(4)(h), Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India). BBI/Boosey and Hawkes: Interim
Measures, 1987 OJ L 286/36 (EC).
40§19(4)(h), Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India); BBI/Boosey and Hawkes: Interim
Measures, 1987, O.J. L 286/36 (EC).
41 JONES ET AL ., EC COMPETITION LAW-T EXT, CASES AND MATERIALS 360 (2nd ed. 2004).
42 United Brands v. Commission, 1978 E.C.R. 207.
43 Explanation 2, §4(2) r/w §19(4), Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
45 EC Decision of 17 October 2013, Case No COMP/39.886 - Ryanair/DAA-Aer Lingus, para 82. Dublin Airport case.

50
Treaty on the Functioning of the European Union Art. 102, Dec. 13, 2007, 2010 O.J. (C 83).
52 Franklin v. Parke, Case 24/67.
53
Sirena v. Eda, Case 40/70.
54Dr. Atilano Jorge Padilla, The Role Of Supply-Side Substitution In The Definition of the Relevant Market In
Merger Control, A Report for DG Enterprise A/4, European Commission (2001).
55 Nazzini, Abuse Beyond Exclusion: Exploitation and Discrimination Under Article 102 TFEU, (2005).
56
David S. Evans & A. Jorge Padilla, Excessive Prices: Using Economics to Define Administrable Legal Rules,
(2004).
57
Shamsher Kataria v. Honda Seil Cars India Ltd. And Ors., Case 3/2011, ¶20.5.61 (CCI).
58Barriers to Entry and Exit in Competition Policy, OFT Research Paper 2, p. 57-59, Office of Fair Trading from
London Economics.
59 O'Donoghue et al., The Law and Economics of Article 82 EC 122 (1st ed. 2006).
60
United Brands v. Commission, 1978 E.C.R. 207.
61
62 Belaire Owners Association v. DLF Ltd., Case 19/2010 (CCI).
64 Kapoor Glass Pvt. Ltd. v. Schott Glass Pvt. Ltd., Case 22/2010 (CCI).
65 Print India v. Springer (India) Pvt. Ltd., Case 16/2010 (CCI).

66 Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 : AIR 1970 SC 253.
67 Kier Group Plc & Ors. v. Office of Fair Trading, (2011) CAT 3.
68
69
§27(b), The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).
70 §6(1), Competition Act, 2002, Act No. 12, Acts of Parliament, 2002(India).
71 International Shoe Co v. FTC, 280 US 291 (1930).

72 Brown Shoe Co v. US, 370 US 294, 331-346 (1962); US v. General Dynamics Corp, 415 US 504 (1974).
73 Citizen Publishing Co v. US, 394 US 131, 137-138 (1969).
74
Id.
75 ¶14, PAGE 4, STATEMENT OF F ACTS , 5TH DSNLU-CCI MO O T CO U R T COMPETITION, 2019.
76
Id.
77U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines § 11(2010) [hereinafter 2010 Merger
Guideline].
78 International Shoe Co v. FTC, 280 US 291 (1930).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
79 Citizen Publishing Co v. US, 394 US 131 137-138 (1969).

80
2010 Merger Guideline.
81 Article 2, EC Merger Resolution No. 139/2004.
82 ABIR ROY, COMPETITION LAW IN INDIA, 146 (2nd edn, Eastern Law House 2014).
83
Automobiles Dealers Association Hathras v. Global Automobiles Ltd, 2012 CompLR 827 (CCI).
84 Id.
85 §19(3), The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).

88 Council Regulations (EC) 2010/C Guidelines on Vertical Restraints (2010), O.J. (C 130/1) (EC).
89
Competition Commission of India v. SAIL, (2010) 10 SCC 744 (India).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

5 DSNLU-CCI National Moot, 2019 Winner Team Memorial - Respondent in The Hon'ble Avalon Company Law Appellate Tribunal at Avalon

Uploaded by

Document Informationclick to expand document information

Copyright:

Available Formats

5 DSNLU-CCI National Moot, 2019 Winner Team Memorial - Respondent in The Hon'ble Avalon Company Law Appellate Tribunal at Avalon

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

5 DSNLU-CCI National Moot, 2019 Winner Team Memorial - Respondent in The Hon'ble Avalon Company Law Appellate Tribunal at Avalon

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Friday, January 21, 2022

5th DSNLU-CCI National Moot, 2019

In the Hon'ble Avalon Company Law Appellate Tribunal at Avalon

2. Automobiles Dealers Association Hathras v. Global Automobiles Ltd, 2012 15

3. In 2014, the paper production unit of Shadowfax went through an insolvency

[1.1] THE VERTICAL AGREEMENT IS ANTI-COMPETITIVE IN NATURE.

(i) Economies of Scale.

two or more entities.

the increase in the standard of living of the associated persons.

47 ¶ 13, PAGE 3, STATEMENT OF F ACTS , 5TH DSNLU-CCI MO O T CO U R T COMPETITION, 2019.

65 Print India v. Springer (India) Pvt. Ltd., Case 16/2010 (CCI).

71 International Shoe Co v. FTC, 280 US 291 (1930).

79 Citizen Publishing Co v. US, 394 US 131 137-138 (1969).

86 ¶12, PAGE 3, STATEMENT OF F ACTS , 5TH DSNLU-CCI MO O T CO U R T COMPETITION, 2019.

You might also like