Introduction
Background
Complexities of moot court competitions
Comment
Moot court competitions are used to introduce law students to court proceedings that arise from a (hypothetical) dispute between parties. Such exercises can allow future lawyers, judges and arbitrators to improve their drafting, research and argumentation skills.
This article provides an overview of the complexities that arise when conducting such exercises for the study of competition law.
Moot court competitions require students to undertake research in order to argue and defend their respective cases, as well as to draft better written submissions and engage with the opposing team's written and oral submissions.
Law schools in India have used moot court competitions for a few decades. These competitions have matured over time and have helped students to hone their skills and experience the adjudicatory process of a court or tribunal. In order to enable a holistic learning experience for the participants, the drafting of the moot court proposition is crucial. As law students may have a limited understanding of the law, this must be considered when drafting a comprehensive and balanced moot proposition.
Complexities of moot court competitions
During the course of adjudging competition law-focused moot court competitions, judges often find that the proposition drafter mixes antitrust and behavioural questions with merger control and regulatory questions. While this may sometimes help participants to understand the Competition Act 2002 in holistic way, as well as the evolving decisional practices of the Competition Commission of India (CCI), the inherent or conflicting legislative intents between the prohibitory and regulatory mandates of the Competition Act(1) often obscure the ultimate objective of the charging provisions.
Due to the contradictory concepts of ex post facto antitrust review of behavioural conduct (eg, in anti-competitive agreements and/or abuse of dominance cases) and ex ante regulation of notifiable transactions (eg, when regulating combinations), complexities sometimes arise in live moot courtroom proceedings when arguments are advanced by participants and are accordingly assessed by judges.
However, the CCI and the appellate courts and tribunals have not yet encountered such a conceptual overlap. The only limited adjudicatory proceedings that have been adjudged in merger control proceedings are gun-jumping proceedings(2) and one-year clawback proceedings (ie, the reopening of closed deals within one year of consummation where the CCI has directly or indirectly received information regarding anticompetitive transactions).(3)
Further, since no combination has yet been blocked by the CCI under the relevant provisions of the Competition Act,(4) no substantive appellate proceeding(5) has arisen from a combination; therefore, neither the National Company Law Appellate Tribunal nor the Supreme Court has examined such an order in appeal.
If an appeal arose against a CCI order to block a transaction, the relevant parties would be the CCI and the aggrieved parties. In case of gun-jumping or one-year clawback proceedings, the adjudicatory process is limited and quasi-judicial in nature as the parties to such proceedings would allegedly be in violation of the law on the one side and the CCI on the other. Two independent enterprises or persons that are litigating to determine their rights and liabilities cannot inter se dispute; the CCI must act as an adjudicator between such parties.
If law schools and collaborating drafters of various competition law moot court exercises do not align in the way that they show how competition law issues play out in actual judicial proceedings, the educational objective for future competition lawyers may not be adequately met. Most competition law moot court competitions are jointly organised by the CCI and law schools as part of the competition CCI's advocacy mandate.(6) Given the direct involvement of the CCI, the moot proposition should correspond with the intent of the law and the evolving decisional practice of the competition regime in India. Moot courts on competition law cannot have a proposition exclusively on merger control. Therefore, showcasing the importance of the regulation of combinations may be one of the reasons that drafters of moot propositions create hypothetical issues with a degree of overlap.
However, such situations are unlikely to be used as a backdrop for a moot court proposition, even if it is based on gun-jumping, one-year claw back proceedings or hostile takeover. Adjudication generally must have two or more contesting parties (enterprises or persons) and the dispute between them must be decided by an authority under due legal process. In merger control proceedings, according to information that the CCI makes publicly available, approximately 96% to 97% of ex ante regulatory process cases have been approved and, therefore, no dispute between transacting parties has emerged, thus no adjudicatory process has ever been adopted.
In order to conduct a successful moot court competition, law students who aspire to practice competition law in India must be exposed to the regulatory aspects of the merger control provisions, as no adjudicatory proceedings per se arise out of the said provisions.
Therefore, it appears that a unique proposition may need to be drafted in the future; for example, one that concerns a closed deal or a joint venture that has caused market distortion. The potential liability that arises under the provisions proscribing abuse of dominance (section 4 of the Competition Act) and/or collusion between competitors (section 3 of the Competition Act), respectively, should be considered while drafting future moot propositions.
For further information on this topic please contact Nilav Banerjee or Manas Kumar Chaudhuri at Khaitan & Co by telephone (+91 120 479 1000) or email ([email protected] or [email protected]). The Khaitan & Co website can be accessed at www.khaitanco.com.
Endnotes
(1) Sections 3 and 4 versus sections 5 & 6 of the Competition Act.
(2) Section 43A of the Competition Act.
(3) Proviso to section 20(1) of the Competition Act.
(4) Section 31(13) of the Competition Act.