CENTRE FOR POSTGRADUATE LEGAL STUDIES

COMPETITION ISSUES IN DELINEATING RELEVANT MARKET

DEFINITIONS IN THE CONTEXT OF DISRUPTIVE INNOVATION

BY

MEGHA CHAUHAN

19010859

2019-2020

DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

MASTER OF LAWS (LLM) CORPORATE & FINANCIAL LAW AND
POLICY

PROF. PRATEEK BHATTACHARYA

ASSISTANT PROFESSOR, JINDAL GLOBAL LAW SCHOOL

 DECLARATION
I, Megha Chauhan, hereby declare that this dissertation titled “Competition Issues in
delineating relevant market definitions in the context of Disruptive Innovations” is
towards completion of the one year residential Masters in Law programme (LLM) in
Corporate Law and Financial Policy at Centre of Postgraduate Legal Studies in OP Jindal
Global University, under the exceptional support and able guidance of my supervisor
Professor Prateek Bhattacharya, Assistant Professor at Jindal Global Law School.

I further declare that this dissertation is the synthesis of my original work and analysis based
on case laws, research papers, reports, scholarly works, news articles etc. which have been
duly cited wherever they are referred during the course of the given dissertation. I have duly
adhered to the CPGLS guidelines and dissertation policy for the captioned LLM programme.

Duly affirmed and declared by:

Megha Chauhan
Student ID- 19010859
LLM Batch 2019-2020
Corporate Law and Financial Law & Policy specialization
Date- 20 June 2020

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ....................................................................................................... 3
ABSTRACT .............................................................................................................................. 4
INTRODUCTION.................................................................................................................... 4
CHAPTER OVERVIEW ........................................................................................................ 6
RESEARCH QUESTIONS ..................................................................................................... 7
1. NEWNESS IN THE MARKET- WHY IS THERE A NEED TO PAY CLOSER
ATTENTION?.......................................................................................................................... 8
1. MARKET DEFINITIONS .............................................................................................. 8
2. THE REGULATOR WORRY...................................................................................... 11
3. DEVELOPMENTS AND RECOMMENDATIONS-CCI ........................................... 11
2. UNDERSTANDING THE ROLE OF BUSINESS MODELS .................................... 15
1. NEW MARKETS DISCOURSE .................................................................................. 15
2. STATIC APPROACHES- DYNAMIC MARKETS .................................................... 19
3. MAPPING THE FUTURE COURSE OF ACTION ................................................... 22
1. CHICAGO DILEMMA ................................................................................................ 23
2. CONCLUSION- THE WAY AHEAD ......................................................................... 25
BIBLIOGRAPHY .................................................................................................................. 28

2
 ACKNOWLEDGEMENT
I would like to express my heartfelt gratitude and appreciation to my supervisor Professor
Prateek Bhattacharya for helping me all throughout the course of my dissertation work.
Professor Bhattacharya has enhanced my knowledge in the subject of competition law by
pushing me to put in extra efforts in learning the nuances of the subject and the current
regulatory framework in both India and overseas. By sharing the vast practical knowledge
that Professor Bhattacharya has amassed while working closely with the competition
regulators in India in landmark competition cases, he has expanded my knowledge beyond
research literature by leaps and bounds. His valuable feedback and suggestions have been
helpful and encouraging.

I would like to express my thank you to the Vice-Chancellor Prof (Dr.) C. Raj Kumar, entire
CPGLS office headed by Prof (Dr.) Sridhar Patnaik and now Prof (Dr.) Vishwas H Deviah
who continually pushed our LLM batch to make significant strides in a brief period and
arranged useful webinars (covid-19 situation) and seminars/conferences (pre covid-19
situation) that have helped us to bring more value to our respective dissertation work. I would
like to thank Ms. Anitha Shibhu for her effective management in the office of CPGLS and
being so approachable at all times, clearing my doubts and queries every step of the way. I
would also like to thank Professor Dolashree K Mysoor for overseeing my dissertation
progress and coordination.

I would also like to thank Professors Avirup Bose and Shilpi Bhattacharya for sparking my
interest in the field of competition law that has further boosted my dissertation research work.
Last but certainly not the least, I would like to express my thank you to my extremely
supportive parents who have stood by me in testing covid-19 times and enabled me to write
my dissertation sans difficulties, ensuring that I have uninterrupted internet connectivity
throughout. A special thank you to Sidhant Mohapatra for being an exceptional support
system and guiding light throughout my dissertation journey.

A huge THANK YOU.

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ABSTRACT
What does disruptive innovation means in modern internet-based economies? My dissertation
begins by explaining how the definition of disruptive innovation has evolved from the late
90s to twenty years from then. It explores the complexities in determining the relevancy of
markets in both product and geographic dimensions in the context of competition regulation
in India and the grey areas of enforcement that still exists. The enforcement gaps and hurdles
in market definitions call for improved and well equipped regulatory procedures and methods
for regulating the new age markets. It seeks to examine various case laws and the stance
taken by disruptors like Google, Amazon and so forth, in an effort to understand the legal
ramifications of the market delineating strategies, tests, and methodologies for disruptive
markets. There is a need to take a new turn for delineating relevant markets in India and find
a possible workable route through exploratory methods and comparative analysis. The
endeavour is to make India's competition regulation adapt well to the new market realities by
taking valuable guidance from international practices and research efforts. An amalgamation
of predictive and exploratory research method is used to examine competition concerns both
present and future. It also draws similarly situated case laws in a comparative analysis
research method to discuss the Indian versus overseas regulatory approach for finding
feasible benchmarks.

INTRODUCTION
Before analysing why current market definitions fail to capture market realities created by
disruptive innovation, it becomes crucial to understand the meaning of disruptive innovation.
The classification of innovation happens in two aspects - disruptive and sustaining
innovations. Disruptive essentially means to disrupt and create a new genre of markets that
were never conceived of, creating a break-through of sorts. Studies on why leading firms and
business failures reveal the difference between the two innovations more vividly. Certain risk
factors and pressure to ensure equal performance deliveries to customers; sometimes lead to
redundancies and consistent profit fixations paving entry for risk-taking new firms
(disruptors) to dismantle the average performance levels a consumer previously perceived.
These changes lead to rampant switch-overs to such new products and technologies in the
survival of the fittest fashion. Understanding the term disruptive can be in the sense that a top
producing leader assumes that his growth and profit cycle is immune to outside challenge, but
then the assumption is proved to be wrong with the entry of the disruptor. In this manner,
disruptive innovation can drastically change consumer preferences by the introduction of
"new performance trajectories"1 through outperformance, thus pushing old products into
redundancy.2 The potential of disruptive innovation is difficult to gauge at its inception, and
some may even refute the big claims of such new product/technology as being useless.
However, slowly it develops and transforms itself, dislodging top tier products and

1
Clayton Christensen, ‘The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail’ (1997)
Harvard Business School, Boston 1-179 < http://harmeh.com/wp-content/uploads/2016/10/Clayton-M.-
Christensen-The-Innovators-Dilemma_-When-New-Technologies-Cause-Great-Firms-to-Fail-Management-of-
Innovation-and-Change-Series-1997.pdf > accessed 28 Feb 2020.
2
Ibid.

4
technologies. Such as expensive huge photocopying machines operated by high skilled labour
replaced by small, convenient and relatively cheap machines that were easy to use3, disc drive
industry replaced by convenient pen drives for business/education, music streaming apps
instead of good old cassettes and disc drives (depending on the consumer use) amongst many
other examples.

Clayton Christensen who first discussed the difference between sustaining and disruptive
innovation, explained the latter as the distinguishing factor for the rise and fall of businesses
and firms4. The consumers may be delighted, on the one hand (sustaining), or consumers may
be pleasantly shocked and extremely satisfied on the other side (disruptive). In essence,
consumer feedback is crucial, and the same forms its epicentre to formulate a good market
strategy and allocate necessary resources for developing new "break-through" technologies.5

At the initial time of discussions on the difference between disruptive innovation and
sustaining innovation in the research literature, customer feedback and trajectory cycles were
not measured with the kind of data precision that exists today. Disruptive innovation becomes
problematic because it is coupled with persistent network effects i.e. users value a platform
because of the number of other users on it.6 With large pools of data and prioritizing scales
over profit, new age business models need a recalibrated competition law regime. Traditional
markets’ assessment with the help of qualitative assessment tools suitable to assess cost/price
effects, fail to take into account "newer considerations" arising from the digital markets.7

New-age technologies that are enabled through the internet ("IT-enabled") are typically
characterized by a limited number of players. Examples of such platforms include Google
(online search), Amazon (online marketplace), Ola and Uber (cab services), Zomato and
Swiggy (food delivery), Tinder, Shaadi dot com (online dating/matrimonial services), etc.
These business models typically operate on multi-sided platforms where one side of the
service is relatively free or subsidized through monetization from another revenue side (i.e.,
through advertisements, premium services, e.g., Zomato Gold, Amazon Prime, convenience
fee charged from consumers, etc.). The number of externalities (direct and indirect), which
are necessarily the costs/benefits reaped by a firm through various such actors on its different
market segments increase the likelihood of anticompetitive conduct which cannot be easily
detected. Why disruptive? Meaning, it disrupts old existing market dynamics through unique
product specifications such as; (a) real-time data generated by a critical mass of users
accessing the platform, (b) inbuilt automated processes that offer an unmatchable "user

3
Examples of success of Canon, Alexandra Graham Bell telephone invention etc. mentioned in Clayton
Christensen, Thomas Craig and Stuart Hart, ‘The Great Disruption’ Council of Foreign Relations (2001) 80 (2),
80-95 < https://www.jstor.org/stable/20050066 > accessed 1 Dec 2019.
4
Joseph Bower and Clayton Christensen, ‘Disruptive Technologies-Catching the Wave’ (1995) 73 (1) Harvard
Business Review 43-53
<https://www.academia.edu/39373428/Disruptive_Technologies_Catching_the_Wave?auto=download>
accessed 2 Jan 2020.
5
Ibid.
6
OECD, ‘The Impact of Disruptive Innovations on Competition Law Enforcement-Executive Summary’ [2017]
1-4 <https://one.oecd.org/document/DAF/COMP/GF(2015)15/FINAL/en/pdf> accessed 9 Dec 2019.
7
Ministry of Corporate Affairs, ‘Report of the Competition Law Review Committee’ [2019] 1-218
< www.manupatra.com > accessed 1 Dec 2019.

5
experience" (e.g., Google SERP engine and other algorithm technologies), (3) incentivisation
achieved through lock-in and network effects (will be discussed in the later sections) and
significantly less risk due to its vast user mass (e.g., ratings, software feedbacks that helps in
making updates, machine learning, AI).

CHAPTER OVERVIEW
This dissertation is divided into three parts. The first part titled ‘Newness in the Market-
Why is there a need to pay close attention?’ discusses market definitions in Indian
competition law framework and highlights the growing regulatory concerns for digital
markets coming from the Competition Commission of India (“CCI”), analysing whether the
revised approach that is being discussed, is adequate enough.

The second part titled ‘Understanding the Role of Business Models’ discusses why
understanding the business structure and strategy is crucial. The comparative analysis method
is used by using similar case studies of Google in India 8 versus EU9 and United States
Federal Trade Commission (FTC)10, MakeMyTrip-GoIbibo matter clubbed with OYO-
Treebo matter in India11 (ongoing) versus the approach taken in Booking dot com case by
Bundeskartellamt12, to point out drawbacks in the Indian market definition framework.

The final and third part titled ‘Mapping the Future Course of Action’ deals with the
competition policy framework which has largely been influenced by the Chicago school of
competition law advocating that consumer welfare and efficiency as an ultimate goal. The
Chicago school gained prominence in United States based on the works of Robert Bork13 who
stressed that vertical integration and concentration are not necessarily anticompetitive. This
led to liberal interpretation of vertical restraints as seen in the US Department of Justice
(DoJ) and FTC 1984 guidelines14. Even in India, for vertical agreements under the Act, a rule
of reason analysis is done to conclude whether or not the agreement is anti-competitive in
nature. However, this simple black and white approach does not cater to the demands of the

8
Matrimony.com Ltd and Ors v Google LLC and Ors [2018] CompLR 101 (Competition Commission of India);
MANU/CO/0008/2018 < www.manupatra.com > accessed 2 Dec 2019; Re: Umar Javeed and Ors v Google
LLC and Ors [2018] case 39 (Competition Commission of India) < https://www.cci.gov.in/sites/default/files/39-
of-2018.pdf> accessed 30 Dec 2019.
9
Google Android [2018] 40099 (European Commission)
< https://ec.europa.eu/competition/antitrust/cases/dec_docs/40099/40099_9993_3.pdf > accessed 10 Dec 2019.
10
WSJ, ‘The FTC Report on Google’s Business Practices’ [2015] 1-85 <http://graphics.wsj.com/google-ftc-
report/> accessed 4 Mar 2020, which indicates how Google was able to effectively scrape off content from its
competitors to strength its own position.
11
Federation of Hotel & Restaurant Associations of India v MakeMyTrip India Pvt Ltd and Ors [2019] case
number 14 (Competition Commission of India) <https://www.cci.gov.in/sites/default/files/14of2019_0.pdf >
accessed 9 Dec 2019 clubbed with Rubtub Solutions Pvt Ltd v MMT [2020] 114 taxmann.com 593 (Competition
Commission of India) ; [2020] case number 1 (Competition Commission of India).
12
Booking.com BV and Anr v HRS- Hotel Reservation Service Robert Ragge GmBH and Ors [2015]B9-121/13
9th Decision Division (Bundeskartellamt)
<https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Entscheidungen/Kartellverbot/B9-121-
13.pdf?__blob=publicationFile&v=2> accessed 16 Apr 2020.
13
Lina Khan, ‘Amazon’s Antitrust Paradox’ Yale Law Journal 720
<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5785&context=ylj> accessed 2 Feb 2020.
14
Ibid 735.

6
digital markets and hence there is a need to bring back components of the forgone Harvard
school of competition law that signalled assessment of the relationship between the business
structure and the conduct in hand. Further this concluding chapter underlines the need to
move towards a technology-centric competition law framework for better evaluation and
suggests ways to counter existing assessment and enforcement gaps.

RESEARCH QUESTIONS
1. Is the present competition legislation, i.e., the Competition Act, 2002, and the
rules/regulations made thereunder sufficient for analyzing the anti-competitive effects of
disruptive innovation?
2. Why do we need to reconsider the market definitions for disruptive innovation?
3. How can India be made more prepared for assessing the anti-competitive effects caused
by disruptive innovation?

7
 1. NEWNESS IN THE MARKET- WHY IS THERE A NEED
TO PAY CLOSER ATTENTION?
1. MARKET DEFINITIONS
Market definitions set up an initial analytical framework for the assessment of competitive
constraints in a two-dimensional manner. In competition law, the markets are defined in two
dimensions that is product market definition and geographic market definition. The exact
terminology used in the Act is "relevant market,"15; understood in terms of "relevant product
market" and "relevant geographic market." This concept is used in assessing the competitive
constraints and competitors' for anti-competitive agreements mentioned in S 3 and the abuse
of dominance cases in S 4 of the Act.

In Competition Commission of India v Coordination Committee of Artists and

Others.16The Supreme Court dealt with the concept of the relevant market in competition law
and defined the same as "power over the market."17 The court described it as a systematic
process for assessing the competitive constraints in the market for examining who are the
competitors and potential competitors by defining boundaries of the market in question18.

The competitive constraints are referred to as appreciable adverse effects on competition (in
short "AAEC") are presumed per se (as it is without further inquiry) in case of horizontal
agreements where parties are engaged in similar level of trade and provision for goods and
services19 such as cartels, bid-rigging, market sharing, etc. The only element to prove is the
existence of the horizontal agreement. However, for vertical agreements 20 (where parties are
in different levels of trade and provision for goods and services) per se rule does not apply.
Here the analysis is done as to whether the pro-competitive effects outweigh the anti-
competitive effects in question. Such agreements are in the nature of "tie-ins, exclusive
supply/distribution, refusal to deal arrangements, resale price maintenance," defined under S
3 (4) of the Act. The analysis of AAEC in vertical agreements is called the rule of reason
analysis for determining if AAEC exists or not under S 19 (3) of the Act (reproduced below)
where (a) to (c) are anti-competitive and (d) to (f) are pro-competitive;

“19

(3)….

(a) creation of existing barriers to new entrants to the market;

(b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) accrual of benefits to consumers;
(e) improvements in production or distribution of goods or provision of services;

15
S 2 (r), The Competition Act 2002.
16
[2017] AIR SC 1449 (Supreme Court).
17
Ibid Para 35.
18
Ibid Para 31-35.
19
S 3 (3), The Competition Act 2002.
20
S 3 (4), The Competition Act 2002.

8
 (f) promotion of technical, scientific, and economic development by means of
production or distribution of goods or provision of services."

For abuse of dominance cases, a three-step approach is followed where the starting point is
the determination of relevant market, second is an identification of the abusive practice under
S 4 and followed by the qualitative assessment of factors under S 19 (4) of the Act. The
factors contained in S 19 (4) are (reproduced below);

“19

(4)….

(g) market share of the enterprise;

(h) size and resources of the enterprise;
(i) size and importance of the competitors;
(j) economic power of the enterprise including commercial advantages over
competitors;
(k) vertical integration of the enterprises or sale or service network of such
enterprises;
(l) dependence of consumers on the enterprise;
(m) monopoly or dominant position whether acquired as a result of any statute or
by virtue of being a Government company or public sector company or
otherwise;
(n) entry barriers including barriers such as regulatory barriers, financial risk, high
capital cost of entry, marketing entry barriers, technical entry barriers,
economies of scale, high cost of substitutable goods or service for the
consumers;
(o) countervailing buying power;
(p) market structure and size of the market;
(q) social obligation and social costs;
(r) relative advantage, by way of the contribution to the economic development,
by the enterprise enjoying a dominant position having or likely to have an
appreciable adverse effect on competition;
(s) any other factor which the Commission may consider relevant for the
inquiry.”21

A strict interpretation of the said factors does not cater to the demands of the digital markets.
The reason is that the conventional contours of the "relevant market" does not take into
consideration the modern economy and market issues. These include factors and conditions
of digital platforms, the role of big data and direct and indirect network externalities,
manipulation by consumer behaviour learning techniques, business strategies, etc. On the
other hand, a liberal interpretation of the factors can lead to over-enforcement that can
ultimately restrict the dynamic efficiency and growth of the economy. Most factors contained
in S 19 (4) takes a different meaning when it comes to dynamic markets characterized by

21
S 19 (4), The Competition Act 2002.

9
disruptive innovation. For instance, defining entry barriers under S 19 (4) cannot be done in a
strait-jacket formula in dynamic markets. While sub-clause (n) of S 19 (4) talks about
economies of scale, there is a separate category identified as “economies of scope,” example
Google and Amazon. Google is better equipped to access new markets and fare better due to
the constant feedback mechanisms which users provide, data learning, network effects,
intermediary information, amongst other factors, versus a prospective entrant. This upper
edge is not because of its current market share, but the market scope it possesses. Therefore
competition is not in a particular market but for a market(s).22 In this aspect, market power
remains a tricky concept because the relative market power of the disruptor expands with the
collected user data (also called sticking market power).23

These characteristics vary from case-to-case basis; hence an exhaustive list of factors in the
legislation itself will further widen the liberal versus strict approach divide, thus allowing the
disruptor to escape regulatory intervention.

The concept of the geographic market also cannot be defined in concrete terms due to the
broad scope of the internet, which transcends boundaries. The business models are complex
and multi-sided, where (usually) one side may be subsidized or free, which is monetized
through other sides say advertisements, upgraded premium sides, amongst other factors.
There is no cost yardstick to follow here because, with more data, the dominance becomes
entrenched, and the optimism regarding market self-correction fails; because of the low error
costs of failing with artificial intelligence and machine learning24 tools. Being dominant is not
anti-competitive by default, but abusing that dominant position in the "relevant market" is.
The question is how the dominance is abused and finding reasonable justifications for the
same, which is not possible with the current framework envisaged in the Act. If the relevant
market itself is difficult to gauge, there is susceptibility to errors and the creation of false
positives or false negatives, deepening the existing challenges of competition regulation.

Competition regulatory agencies in India are wary because they do not want to over-enforce
as that may lead to throttling innovation cycles and restricting dynamic efficiency. However,
at the same time, under-enforcement has its peculiar challenges25 , which may invite
entrenchment of dominance and unfair market conditions. Think of a poorly constructed
ladder where the first rail needs the climber to be extra cautious because if too much pressure
is applied, then the entire ladder will dismantle. Now using the same analogy to a market
definition in competition law assessment, if the first step does not happen in a careful and
relevant manner, then the whole assessment exercise is rendered futile.

22
Jacques Cremer, Yves Montjoye and Heike Schweizer, ‘Competition Policy for the Digital Era’ (2019)
European Commission 1-127, 33<https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf>
accessed 10 Apr 2020.
23
Ibid 42.
24
C Hemphill, ‘Disruptive Incumbents’ (2019) 119 (7) Columbia Law Review 1973-2000
< https://www.jstor.org/stable/10.2307/26810856 > accessed 20 Dec 2019.
25
Howard Shelanski, ‘Information, Innovation and Competition Policy for the Internet’ (2013) 161 (6) U Pa L
Rev 1663-1705 < https://heinonline.org/HOL/P?h=hein.journals/pnlr161&i=1693 > accessed 10 Jan 2020.

10
 2. THE REGULATOR WORRY
The competition regulator in India, i.e., Competition Commission of India (in short "CCI") is
a multi-functioning body that performs several functions such as investigation, adjudication,
administration, advocacy, and most importantly, it has an inquisitorial role26. The Act is a
special legislation that deals with many sectors and diversified market structures that are
continuously changing. CCI is thus required to acclimatize with the changing pace and
market structures and assume a broad based role. Quite recently, CCI devoted and
materialized research efforts for examining existing regulatory gaps and grey areas,
especially in new age-markets marked by the presence of disruptors. The regulator worry is
evident in terms of the 2019 expert committee report published by CCI ("Report")27 and
findings of the 2020 market study report on e-commerce ("Market Study").28

3. DEVELOPMENTS AND RECOMMENDATIONS-CCI

The issues relating to market definitions and ancillary concerns arising from "fast-developing
new age markets"29 are solidified in the Report read together with the Market Study, as
discussed below.

(a) S 19 (6), which gives forth factors for defining "relevant geographic market," the
Report recommended the inclusion of elements like "characteristics of goods and
services"30 and "costs associated with switching supply/demand to other areas"31 for
digital markets.32 While these additions are essential, there is a need to realize that
geographic dimensions of the relevant market cannot be defined strictly in dynamic
internet-driven markets. The definition of the geographic market in the "Google
Android" case bears testimony to this fact.
(b) The Report recommended improving the factors of relevant product market under S
19 (7) by including "switching costs"33 and "categories of consumers"34; as they add
value for developing a feasible product market definition for multi-sided platforms.35
This kind of clarity for understanding how network externalities work and inter-
relationships that exist between different customer groups on various segments is
essential.36 While this is a welcome move, but other crucial factors such as
"competitive conditions and structure of supply and demand,"37as mentioned in the

26
Ministry of Corporate Affairs, ‘Report of the Competition Law Review Committee’ [2019] 1-218, 38
< www.manupatra.com > accessed 1 Dec 2019.
27
Ibid.
28
Competition Commission of India, ‘Market Study on E-Commerce in India-Key Findings and Observations’
(2020) 1-38 <https://www.cci.gov.in/sites/default/files/whats_newdocument/Market-study-on-e-Commerce-in-
India.pdf> accessed 20 Jan 2020.
29
Ministry of Corporate Affairs (n 26) 214.
30
Ibid 71.
31
Ibid.
32
Ibid.
33
Ibid 71-72.
34
Ibid.
35
Ibid.
36
This aspect was highlighted by CCI in Matrimony.com v Google. [2018] CompLR 101 (Competition
Commission of India) Para 41; MANU/CO/0008/2018 < www.manupatra.com > accessed 2 Dec 2019.
37
[2018] 40099 (European Commission) 55
< https://ec.europa.eu/competition/antitrust/cases/dec_docs/40099/40099_9993_3.pdf > accessed 10 Dec 2019.

11
 "Google Android" case, missed out from being discussed in the Report. The
recommendations would have been more relevant if references from landmark case
laws dealt exhaustively with overseas competition agencies were drawn.
(c) Anti-competitive agreements under S 3 of the Act include horizontal agreements
under S 3 (3) where AAEC is assumed per se and vertical agreements under S 3 (4)
where proof of AAEC through the rule of reason analysis is required (discussed
above). This definition should be expanded to take into account other kinds of
agreements that do not strictly fulfill the ingredients mentioned in these categories.
This expansion will enable the regulator to apply a reasoned approach which
warrants the rule of reason analysis, even if the agreements do not qualify as a
horizontal or vertical one in a strict sense.38 Strict categorisation and nomenclature in
digital markets can potentially serve as a loophole in the Act. A better understanding
can then divert to how, for instance, MFN (most favoured nation) or price parity
clauses affect market conditions or how is the given conduct/practice
anticompetitive.
Another example of overlapping definitions is the unique kind of information
exchanges and collusions that takes place in digital markets. The available
competition jurisprudence on traditional collusive practices such as bid-rigging cases
cannot be applied here. Circumstantial evidence and red flags in the form of physical
meetings, econometric analysis, traditional price tests such as SSNIP (small but
significant non-transitory increase in price) etc. serves no purpose for digital markets
where data analytics and "algorithmic collisions"39 occur. While this form of market
sharing or collusive practices (horizontal restraint) may indeed exist, due to lack of
information, these may appear as a vertical restraint where AAEC analysis may pose
several challenges (such as balancing innovation trade-offs).
(d) Rule of reason analysis for AAEC given under S 19 (3) of the Act is where a tick-box
approach is adopted, and CCI has to assess whether the anti-competitive effects
outweigh the pro-competitive effects, as discussed above. The Report recommends
that the AAEC factors mentioned therein need widening to include elements of new
markets and business models.40 It particularly suggests truncating S 19 (3) (c), which
currently reads as "foreclosure of competition by hindering entry into the market" as
foreclosure of competition.41It emanates from a realization that in some instances,
there may be foreclosure of competition through other business strategies, which has
further been dealt in the subsequent sections.
(e) Complementarity between offline and online channels needs to be better understood.
The Market Study pointed out how offline stores (popularly called "brick-and-mortar

38
Ministry of Corporate Affairs (n 26) 64.
39
Alessandro Massolo, ‘The Autorité de la concurrence and Bundeskartellamt report on “Algorithms and
Competition”’ Kluwer Competition Blog 24 Jan 2020
<http://competitionlawblog.kluwercompetitionlaw.com/2020/01/24/the-autorite-de-la-concurrence-and-
bundeskartellamt-report-on-algorithms-and-
competition/?doing_wp_cron=1588654417.0912721157073974609375> accessed 20 Feb 2020.
40
Ministry of Corporate Affairs (n 26) 68.
41
Ibid.

12
 retailers"42) are also going online for sales generation. The supplementary nature
depends on a case-to-case basis, such as for fashion needs is considered as
complementary. In contrast, for exclusive online launches such as certain
smartphones, it may not be supplementary.43
(f) It recommended the amendment of the term resale price maintenance ("RPM"),
which is a form of a vertical anti-competitive agreement under S 3 (4) (e), to cover
both direct and indirect RPM.44 Indirect RPM will help in including non-price factors
by providing ground to assess self-preferencing strategies, "parity clauses,"45
restrictive business terms etc. within this category.
(g) CCI also recommended re-assessing the factors of abuse of dominant position under
S 4 (2) that inter-alia covers exclusionary and exploitative abuses such as denying
access to markets, leveraging, restriction of goods and services or "technical or
scientific development" etc. to make it more usable by incorporating an "effects-
based approach."46 At present, the factors of abuse do not answer as to how it
qualifies as abuse and in what manner competition in the relevant market is affected.
(h) The Report recommends that S 4 (2) (e), which talks about leveraging and reads as
"its dominant position in one relevant market to enter into or protect another relevant
market," needs to be re-phrased47. It recommended adding the word "associated" for
the market sought to be leveraged, as it felt that a causal link was necessary for
leveraging.48 While this recommendation got ultimately rejected, the illustration used
in the Report of a traditional market scenario revealed inconsistencies. It spoke about
protecting non-associated market expansion as this will lower the incentives of
competition by saying that what if an oil refining company decides to expand to the
telecom sector. This narrow example as used in the Report does not hold relevance to
new markets where disruptors such as Amazon feed their R&D efforts through data
learning techniques, AI technologies, data insights, etc. from not only the consumers
but also their intermediaries, which can potentially harm the market in the long run.

"…the house brand 'slept quietly as it retained data about

other sellers' successes."49

In data-driven markets where the nature of resources (data/AI technologies, etc.) are
not comparatively visible than traditional goods and services, causal links can be hard
to establish in the absence of a useful framework. Hence, there is a growing need to
enhance the existing structure accordingly. The Report also suggested boosting the

42
Competition Commission of India (n 28) 7.
43
Ibid 8.
44
Ministry of Corporate Affairs (n 26) 67.
45
These clauses go by different headers depending on the nature of agreement/transaction on a case-to-case
basis.
46
Ministry of Corporate Affairs (n 26) 203.
47
Ibid 204.
48
Ibid.
49
Lina Khan, ‘Amazon’s Antitrust Paradox’ [2017] The Yale Law Journal 782
<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5785&context=ylj> accessed 10 Jan 2020.

13
 office of the DG by drawing in experts50 that will also enable the development and
interpretation of sector-specific regulations from a competition law perspective,
especially for digital platforms.51 The Competition Commission of India (Procedure
for Engagement of Experts and Professionals) Regulations, 2009,52 under the Act
provides sufficient ground for the same.

Considering the points mentioned above and the various technicalities involved in digital
markets such as data mining53, data masking54, network effects, lock-in effects,
interoperability concerns, etc., there is a need to draft and implement specific regulations for
digital markets under S 64 of the Act. Too many additions in the Act itself will lead to
anomalies because traditional markets still exist, so mixing up the two will not be pragmatic.

50
Ministry of Corporate Affairs (n 26) 213.
51
Jacques Cremer, Yves Montjoye and Heike Schweizer (n 22) 10.
52
The Competition Commission of India (Procedure for Engagement of Experts and Professionals) Regulations,
2009 < https://www.cci.gov.in/sites/default/files/regulation_pdf/engagement.pdf> accessed 17 Dec 2019.
53
“Data masking” basically refers to the concealment of data insights by the platform to its
partners/intermediaries.
Competition Commission of India (n 28) 25.
54
Referred to as a“process used to extract usable data from a larger set of any raw data”.
Definition of Data Mining, The Economic Times < https://economictimes.indiatimes.com/definition/data-
mining> accessed 1 May 2020.

14
 2. UNDERSTANDING THE ROLE OF BUSINESS MODELS
1. NEW MARKETS DISCOURSE
The new market discourse created by disruptors such as Google depicts its consistency in
being an unmatchable incumbent for search-based services, amongst others. Such platforms
that enjoy competitive advantages due to its extensive network (scope) insulating its position
are often referred to as "Economies of Scope."55 This scope is the capacity to operate on
different segments and create niche markets stems from various means such as the collection
of data through AI, machine learning, network locked in users, large user base, restrictive
covenants, and access conditions, etc.. These factors can potentially work to the detriment of
the market economy without a regulatory framework.

For evolving an understanding of the competitive conditions of such disruptors, it is crucial to

assess its business structure and accordingly judge its conduct qualitatively. If the regulator
looks into superficial structure and justifications coloured as "objective justifications" or if
insufficient market forecasts are relied upon, then errors will naturally ensue. The test of
substitutability or interchangeability, which is used in the "relevant product market"
definition, needs to be supplemented with new approaches that consider perceptions of not
only the end consumers on one market segment but varied customer group categories, such as
intermediaries/suppliers/advertisers/publishers, as the case may be.

In Matrimony.com Ltd and Ors v Google LLC and Ors ("Google I")56 case, for analyzing
whether Google has abused its dominance, the DG defined two relevant product markets as
the market for online web search service in India and market for online search advertising in
India, applying the test of substitutability. The online advertising market was demarcated into
an online search advertising market and online non-search advertising market based on
differentiating characteristics such as user clicking behaviour, calculation of revenue i.e.,
cost/click basis for online search ads and cost per thousand impression basis for online non-
search ads, and purpose. CCI by separating online and offline markets as being distinct
categories based on factors such as internet users in the country (perception that not everyone
uses the internet in India), monitoring levels (preciseness more in online ads), level of
engagement, etc. misunderstood complementarity as substitutability. An analysis of Google's
contention stating that DG did not take into consideration the perception of an advertiser57
into context, is quite relevant. The term interchangeability or substitutability used in the
definition of a "relevant product market" under S 2 (t) is from the perspective of a consumer,
which has a broader meaning in the Act versus the Consumer Protection Act, 1986. So how is
that an advertiser who avails the service58 of the newspaper or the internet platform for
displaying or publishing its ads, not a consumer? The definition of a consumer under the Act
is wide enough to analyze such varied consumer groups and take their perceptions into
account. There is no bar that stops an advertiser for running ads on both online and offline

55
Jacques Cremer, Yves Montjoye and Heike Schweizer (n 22) 2-3.
56
[2018] CompLR 101 (Competition Commission of India); MANU/CO/0008/2018 < www.manupatra.com >
accessed 2 Dec 2019.
57
Ibid Para 59.
58
S 2 (f), The Competition Act 2002.

15
platforms simultaneously. The same consumer also uses online platforms and reads offline
print media at the same time. Even though the rate of return on investment (ROI) that an
advertiser looks into may vary along with other commercial variables. However, that does not
mean these product markets are distinct and not interdependent.

In the pursuit of defining product markets narrowly, flawed approaches may be adopted
because it helps in solidifying the abusive conduct on the part of the respondent(s), something
like a shortcut to the complex market definition exercise. Also, the DG's reasoned analysis
for delineating a separate relevant product market for "online search ads" was strikingly
similar to the "Microsoft/Yahoo Search Business"59 case decided in 2010 (almost seven years
ago than Google I) by the European Commission ("EC"). This aspect highlights less
homework on the part of the investigation wing. It is relevant to note that in Google I, the
Federal Trade Commission (FTC) Staff Report dated 08.08.2012, which was presented by
CONSIM, was discussed by the CCI. The Report stated that Google had manipulated SERP
to its advantage, but the CCI did not place reliance upon this document. Even Google
admitted that the SERP results were not always free-floating and had "certain fixed positions"
before 2010, meaning that the same was not strictly determined by relevance. However, CCI
took the self-correcting nature of Google in its favour and gave a clean chit to it on this score.

In Re: Umar Javeed and Ors v Google LLC and Ors ("Google II")60, CCI defined the
relevant product market as "the market for licensable mobile operating systems" in the
relevant geographic market of India. In Google II, Google sought to leverage its position in
the mobile OS market by imposing restrictive conditions in agreements with manufacturers,
etc. compulsorily tying the entire Google Mobile Suite ("GMS") as a mandatory covenant.
CCI prima-facie found that Google was leveraging its position by compulsorily tying in its
GMS and giving no choice to the third parties than to accept the same. While Google inter
alia pleaded that the alleged restrictive covenants in the agreements with manufacturers,
developers, etc. were necessary to avoid any software incompatibilities. However, CCI
negated this argument and ordered further investigation under the Act.

The allegations leveled by the complainants in Google II bears similarity with the "Google
Android"61 decision by the EU, where a careful assessment of Google’s business model was
done. By looking at the mandatory requirement of a Gmail account to operate Play Store to
how other third parties are dependent on its operating system, the Commission rightly pointed
out Google's “audience-seeking-strategy” for charting out more advertisement revenue in its
deep pockets.62 The "relevant geographic market" identified in the "Google Android
decision" was taken to be "worldwide excluding China," while in Google II, CCI limited it to
India. It points out the broader connotation of homogeneity in the definition of "relevant

59
Microsoft/Yahoo Search Business case [2010] 32010M5727 (European Commission), 10-11
<https://ec.europa.eu/competition/mergers/cases/decisions/M5727_20100218_20310_261202_EN.pdf>
accessed 1 Mar 2020.
60
Google II [2018] case number 39 (Competition Commission of India) <
https://www.cci.gov.in/sites/default/files/39-of-2018.pdf> accessed 30 Dec 2019.
61
Google Android [2018] 40099 (European Commission)
< https://ec.europa.eu/competition/antitrust/cases/dec_docs/40099/40099_9993_3.pdf > accessed 10 Dec 2019.
62
Ibid 39.

16
geographic market" under S 2 (s). The word used in S 2(s) is "distinctly homogenous," which,
in the literal sense, cannot be applied in digital dynamic markets where homogeneity refers to
sufficiently similar rather than being identical. It is also quite surprising that the Act, which
borrows significantly from the European competition literature, fails to incorporate landmark
case findings involving the same player, i.e., Google and similar merits, in its geographic
market definition.

In Federation of Hotel & Restaurant Associations of India ("FHRAI") v MakeMyTrip

India Pvt Ltd ("MMT") and Others63 ("FHRAI-MMT") dealing with S 3 and 4 allegations
against MMT-GoIbibo64 ("Go"). Anti-competitive allegations were leveled on MMTGo
inter-alia on the grounds of inclusion of MFN clauses in across platform parity agreements
(APPA), predatory pricing, forced exit strategies, deep discounting, misrepresentations to end
users by continuing to display delisted hotels which were no longer a part of their contractual
arrangements on MMT-Go platform65. In this case, CCI determined the "relevant market" as
the "market for online intermediation services for booking of hotels in India"66 and found a
prima-facie case to exist against MMT-Go under S 4 and S 3(4) of the Act.

Recently, the FHRAI-MMT case was clubbed together with Rubtub Solutions Pvt Ltd
(operated Treebo platform) v MMT67 ("FHRAI-Treebo-MMTGo") vide CCI order dated
24 Feb 202068 wherein abuse of dominance allegations under S 4 (2) were leveled against
MMT-Go by Treebo. Treebo alleged absolute exclusionary and exploitative restrictions
imposed on it through its commercial contracts with OYO such as "chain agreement,"69
denying market access to Treebo by locking its properties from being available to
Booking.com and PayTM on its platform 72 hours or 3 days before the date of check-in for
"Category A" (areas which attracted most tourists) hotels under the "Exclusivity
Agreement."70 CCI did not separately determine the "relevant market" in this case and used
the same "relevant market" defined in FHRAI-MMT as these two cases shared similarities.

The FHRAI-MMT-Treebo matter indicates the overlaps between horizontal and vertical
integration of business models and unfair parity clauses, causing AAEC. While these now
clubbed matters are still under investigation, a similar case decided by the Bundeskartellamt
(competition regulator agency of Germany) can potentially serve as a tool for guidance. In
Booking.com BV and Anr v HRS- Hotel Reservation Service Robert Ragge GmBH and
Ors ("Booking.com case")71 decided by Bundeskartellamt, the "relevant market" was

63
FHRAI-MMT case [2019] case number 14 (Competition Commission of India)
< https://www.cci.gov.in/sites/default/files/14of2019_0.pdf > accessed 9 Dec 2019.
64
MMT-GO got merged vide order dated 18 Jan 2017. Ibid Para 9.
65
Ibid Para 61.
66
Ibid Para 41.
67
FHRAI-Treebo-MMTGo case [2020] 114 taxmann.com 593 (Competition Commission of India); [2020] case
number 1 (Competition Commission of India).
68
Ibid Para 29.
69
Ibid Para 24.
70
Ibid Para 26.
71
Booking.com case [2015]B9-121/13 9th Decision Division (Bundeskartellamt)
<https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Entscheidungen/Kartellverbot/B9-121-
13.pdf?__blob=publicationFile&v=2> accessed 16 Apr 2020.

17
determined as the "market for intermediary services of the hotel portals." It is important to
recognize that parity clauses as MFN are often defended by businesses as a shield to the
"free-riding" issue, where considerable resources are spent by them to give the intermediaries
the kind of quality that would incentivize their business. However, these justifications can be
taken far too ahead as a possible shield to their anti-competitive conduct. In what manner can
this be avoided, is where Booking.com case comes handy and helps in understanding such
issues pragmatically;

(a) Carefully analysing the practical effects (in India, analysis of AAEC) of the
agreements, commercial understandings, etc. in question and linking it to the alleged
anti-competitive conduct in question. In Booking.com case, the effect of narrow best
price clauses was analysed through a"what if" scenario. That is assessing whether
there no other "reasonable" way to act than through the imposition of such clauses.
This exercise will place the justifications offered by the respondents from a practical
standpoint, also called a counterfactual-test.
(b) The market freedom of not only the respondent has to be seen but also how the
intermediaries or potential competitors' market freedom is being affected by the
former's conduct.72
(c) For understanding the link between different markets in a more concrete sense, a
functional substitutability test73 was followed in this case, i.e., in what manner the
functions of the say revenue side depend on the free/subsidized side. The causal
reference helps in gauging the indirect network effects of the particular platform
more specifically.
(d) Respondents in most cases consistently argue for a broader market definition (to
wriggle out of the dominance allegation) such as including offline channels etc.
within the market contours; that sometimes leads to false-negative situations by
perceiving a narrow market as broad. In this case, the respondents argued that meta-
search engines and other specific portals should also be included for a market
determination as they exercise competitive pressures.74 These contentions under a
test of "actual substitutability," revealed whether the alleged competitive pressures
could transform such platforms as actual substitutes. The answer was in the negative,
also referred to as "alternatives' paradox."

72
Booking.com case (n 71) Para 313.
73
Ibid Para 142.
74
Ibid Para 145.

18
 2. STATIC APPROACHES- DYNAMIC MARKETS
"Delineation of relevant market is based on market realities as they
exist at the time of assessment. In rapidly changing markets in
particular, market assessment cannot have a static approach (emphasis
added)."75

Measurement of value in revenue or cost basis is not the correct way to approach the market
structures created by disruptive platforms. A user’s value notion in accessing or using a
platform is subjective and varies across the consumer categories such as advertisers,
intermediaries, suppliers or buyers. But holistically the value delivered to the given business
model is huge in the form of data analytics and user information.76 Under the garb of
providing free services or highly subsidised services, a platform can engage in
anticompetitive practices and conduct through leveraging tactics and driving user traffic via
algorithms (amongst other unique factors). This further highlights why potential competition
aspect or a "prospective analysis of dynamic competition"77 is needed to be looked at in detail
for dynamic market assessments. This aspect means looking at the business model from the
inception to see how the future market dynamics were anticipated by the given platform in
question. Simply put, seeing "the future as it was seen by the parties at the time of the
conduct."78

Dynamic markets create complexities that vary from a case-to-case basis. The traditional
competition assessments such as SSNIP (small but significant non-transitory increase in
price) test cannot be applied, as data and scale are the major factors driving such markets. For
instance, in FHRAI-MMT-Treebo matter, which is pending investigation, artificial demand
and supply chains were allegedly created by such anti-competitive practices. The dependency
of consumers through the network (through the number of users on that platform) and lock-in
effects (inherent inability to switch) occurs by being accustomed to the interface, features,
accessibility options, format, etc. The user becomes accustomed to the interface, features,
accessibility options, format, etc. which works as a lock-in effect,79thereby helping the
platform to improve quality standards by consistent real-time feedback, especially when the
user base is high that helps in making better updates.

These technicalities help in understanding what value should be attached to the arguments
raised by the respondents during market definition exercise, eg. Google in the "Google
Android" case asserted that default settings could be changed easily where a user is free to
select any other web browser apart from the default Chrome. The question is, will the users

75
FHRAI-MMT case (n 63) Para 40, 17.
76
Marcelo Thompson, ‘In Search for Alterity: On Google, Neutrality and Otherwise’ in Aurelia Tarruella (ed),
Google and the Law- Empirical Approaches to Legal Aspects of Knowledge-Economy Business Models (TMC
Asser Press Hague) 355-399.
77
Viktoria Robertson ‘Delineating Digital Markets under EU Competition Law: Challenging or Futile?’ (2017)
12 (2) The Competition Law Review 133-134
<https://www.academia.edu/35085866/Delineating_Digital_Markets_under_EU_Competition_Law_Challengin
g_or_Futile > accessed 10 Dec 2019.
78
Jacques Cremer, Yves Montjoye and Heike Schweizer (n 22) 47.
79
Ibid.

19
actually change it, given such effects. In this manner, the appraisal of actual substitutability
from the demand-side happens in a better way. The "the-winner-takes-all" phenomenon gets
reinforced as potential competition lags due to such direct and indirect network externalities,
scale effects, and vast pools of data already accessed by such platforms.80 Scale achieved
through data is commoditized, which no other incumbent or entrant can practically perform.81
In a hypothetical situation assuming there are no barriers for entry of new players, the
question is what are the switching costs and individual incentives existing in the mind of an
average consumer whose 'used to' the platform say an Android phone or Google Chrome
browser.

With big giants scaling up operations taking examples of Google, Amazon, Uber, Zomato,
etc. and enhancing investor value via private equity and venture capital and rise in
competition complaints. It becomes crucial to look at what investor considerations and
probable investment preferences occur while dealing with such complex models, which can
serve as sound cues for devising a useful framework.82 In Mega Cabs Pvt Ltd v ANI
Technologies Pvt Ltd83, CCI stated that the investment route is equally accessible to all,
which reveals a static approach not suitable to disruptive markets where other business
considerations exist. It is relevant to know what business models attract more investments for
understanding how and why specific business structures have the upper hand and how the
competition is affected detrimentally.

The static approach adopted by CCI in approving the combination of Wal-mart

International Holdings Pvt Ltd by the acquisition of substantial shares of Flipkart Pvt
Ltd84 ("Walmart/Flipkart") is evident when it presumes that no AAEC is likely to be caused
by saying on the one hand that competition is free for all as there is 100% FDI under the
automatic route in the "marketplace model of e-commerce." On the other hand, when it came
to assessing concerns from representations alleging deep discounting and manipulation of
prices by Flipkart, CCI said that it fell into the FDI policy domain85 unrelated to the present
case and went ahead to approve the combination. The horizontal and vertical overlaps
existing between Flipkart and Wal-Mart were discussed in a limited sense wherein the current
market shares of different products were seen, such as for Flipkart's primary segment is
mobiles/electronics. On the other hand, Wal-Mart has groceries as a central segment
(majority segments being different). Based on this limited approach, it concluded that the
market structure remained unaltered. CCI did not discuss what product segments were likely
to be introduced by the proposed combination for actual AAEC analysis in the foreseeable

80
Avirup Bose and Smriti Parsheera, “Network Effects in India’s Online Business: A Competition Law
Analysis” [2016] 1-41, 4 < https://www.cresse.info/uploadfiles/2017_pa14_pa2.pdf > accessed 18 Dec 2019.
81
Ibid.
82
Ibid 38.
83
[2015] case number 82 (Competition Commission of India) Para 27
<https://www.cci.gov.in/sites/default/files/26%282%29_82%20of%202015_0.pdf> accessed 12 Feb 2020.
84
Walmart/Flipkart case [2018] Combination Registration n C-2018/05/571 (Competition Commission of
India) <https://www.cci.gov.in/sites/default/files/Notice_order_document/Walmart%20PDF.pdf> accessed 8
Dec 2019.
85
Ibid Para 14-15.

20
market structure.86While the spirit of the Act gives a broad-based role for competition
regulation, CCI, in its decisional practice, continues to assert its limited position, which
breeds fertile ground for anti-competitive conduct in the market.

As discussed above, the market definition in disruptive markets is a tricky exercise, and the
tendency to define markets narrowly does not solve the broader issue. Due to the dynamism
of markets, a new course of market delineation needs to be adopted, which keeps the broad
reach of the internet in context or market definition be left open, which has been done by
Bundeskartellamt (Facebook decision)87. Even if presently no headway can be drawn about
disruptor business strategy, a "market for attention"88 can be delineated based on the user
base, temporal factors, etc.89

86
Walmart/Flipkart case (n 84) Para 9.1.5.
87
Facebook Inc and Ors [2019] 6th Decision Division (Bundeskartellamt) 1-278, Para 166
<https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Entscheidungen/Missbrauchsaufsicht/2019/B
6-22-16.pdf?__blob=publicationFile&v=5> accessed 12 Apr 2020.
88
Inge Graef, Sih W and others, ‘How Google and others upset competition analysis: Disruptive Innovation and
European Competition Law’ [2014] 25th European Regional Conference of the International
Telecommunications Society (Belgium) 1-20
< https://www.econstor.eu/bitstream/10419/101378/1/795226780.pdf > accessed 12 Jan 2020.
89
Ibid.

21
 3. MAPPING THE FUTURE COURSE OF ACTION
Modern economy's growing complexities in the functioning of disruptors in digital markets,
innovation cycles, and unique dynamics are a cause of concern for competition regulators
worldwide. Unlike traditional markets, the "the-one-size-fits-all" straitjacket approach cannot
apply here. While the disruptors create new markets, which no doubt enhances output,
quality, consumer welfare, and efficiencies, but how to sustain the consumer welfare aspect
remains a blur. The unequal bargaining power levels of a supplier or intermediary in such a
platform and entrenchment through anti-competitive conduct is a common contention in
almost all cases discussed in this paper. OECD puts forth a critical suggestion, which is to not
to overemphasize de-concentration but to correct anti-competitive behaviour by weakening
the barriers or finding creative ways to offset concentration for inhibiting "market
tipping."90For instance, through inter-operability (to allow easy switching to platforms),
multi-homing, remedial measures (Bundeskartellamt Amazon case91) etc.

In MCX Stock Exchange Ltd v National Stock Exchange (NSE) of India Ltd and
Others92 (“MCX/NSE case”) CCI considered the essential nature of its application
programming interface code (NSE platform) whereby the zero pricing strategy in its currency
derivative market held as destructive in nature.93 NSE superficially created a nascent market
by cross-subsidizing from its other monopolized segments94 , which were taken note of by the
CCI. The kind of business strategy analysis done by CCI in this case, back in 2011, reveals
the assessment risks posed by new markets that need attention. The intention is not to
suppress the innovation or incentives to innovate but to regulate the market, by analyzing
how such markets work and the nature of resources/infrastructure it needs.

The OECD debates on new market regulatory approaches, point out the difficulties in
categorizing anti-competitive conduct object wise (where per se restriction applies) and effect
wise (where the rule of reason applies) and ancillary issues. For instance, what if there is a
genuine "free-rider" issue if a per se restriction is applied, then how will the respondent
justify it?95 There may be other business rationales that do not fit the per se restriction at all.

90
OECD, ‘Competition For The Market’ Global Forum on Competition [2019] 1-52, 7
<https://one.oecd.org/document/DAF/COMP/GF(2019)7/en/pdf> accessed 6 May 2020.
91
In this case without defining the market, Bundeskartellamt made effective strides in modifying Amazon
marketplace conduct with its seller.
Silke Heinz, ‘Bundeskartellamt Ends Abuse Probe after Amazon Agrees to Changing Business Terms for
Dealers’ (Kluwer Competition Law Blog, 30 July 2019)
<http://competitionlawblog.kluwercompetitionlaw.com/2019/07/30/bundeskartellamt-ends-abuse-probe-after-
amazon-agrees-to-changing-business-terms-for-dealers/> accessed 6 May 2020.
‘Bundeskartellamt - Homepage - Bundeskartellamt Obtains Far-Reaching Improvements in the Terms of
Business for Sellers on Amazon’s Online Marketplaces’
<https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2019/17_07_2019_Amazon.ht
ml;jsessionid=98F173CFCF40CBB4E3AA149FF088832E.1_cid362> accessed 6 May 2020.
92
MCX/NSE case [2011] case 13 of 2009 (Competition Commission of India); MANU/CO/0032/2011
<www.manupatra.com> accessed 8 May 2020.
93
Ibid Para 10.6 and 22.4.
94
Ibid Para 44.1.
95
OECD, ‘Summary of Discussion of the Roundtable on Implications of E-Commerce for Competition Policy’
[2019] 1-15 <https://one.oecd.org/document/DAF/COMP/M(2018)1/ANN4/FINAL/en/pdf> accessed 1 May
2020.

22
Hence, there is a growing concern to re-analyze and look at what approach is the most
suitable one. The role of business models is crucial to map out the future course, and
therefore, structure analysis precedes the assessment of conduct. Too much emphasis on
conduct and identifying the type of abuse (like it happens in India) does not solve the
underlying issue because the question as to "how the abuse affects the consumer and the
economy in the long run" remains unanswered.

1. CHICAGO DILEMMA
The Chicago school gained prominence after the USA's Department of Justice and the
Federal Trade Commission introduced guidelines applicable to vertical restraints adopting an
outcome-based approach and lessening the previous rigors on vertical restraints.96 The
Chicago school did not see concentration as a problem ("big is not always bad") and
considered its decisive role in terms of increasing consumer and economic efficiencies,
bringing product improvements, etc.97 It views entry barriers in a limited manner by ignoring
various advantages enjoyed by incumbents as the requisite "costs of demands of production
and distribution."98 It believes that eventually, market forces will discipline the market on its
own99 which is a very narrow approach to begin with.

On the other hand, Harvard school of competition law that focussed on "structure-conduct-
performance" approach is crucial in the context of disruptive business models. This school
primarily asserts the importance of how concentrated business structures are problematic, as
they disturb competition equilibrium. Though this approach, if applied strictly, led to various
blanket restrictions on even the efficiency based models. Complete abandonment of the
structural approach advocated by Harvard school also creates new issues that solely focus on
consumer welfare standards and efficiencies, creating new gray areas for anticompetitive
conduct and practices.100This aspect has been highlighted by the works of Tim Wu, Lina
Khan and others, under the neo-brandeisian antitrust school of competition law.101

Overemphasizing consumer welfare and overlooking the structural aspect creates a fallacy of
sorts. In this way, AAEC analysis is done in a vacuum by mechanically applying competition
law rules and regulations, not studying the dependent variables such as intermediaries, long
term business plans, consumer harm tendencies, etc. The best example of this is the Quidsi-
Amazon case, where first Amazon pressurized Quidsi (owner of diapers dot com) to sell the

96
Lina Khan, ‘Amazon’s Antitrust Paradox’ Yale Law Journal 735
<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5785&context=ylj> accessed 2 Feb
97
David Audrestch, ‘Divergent views in Antitrust Economics’ (1988) 33 Antitrust Bulletin 145-146
<https://heinonline.org/HOL/P?h=hein.journals/antibull33&i=143> accessed 18 April 2020.
98
Lina Khan (n 96) 720.
99
Ibid.
100
‘A Brief Overview of the “New Brandeis” School of Antitrust Law | Antitrust Update’ (Patterson Belknap
Webb & Tyler LLP) <https://www.pbwt.com/antitrust-update-blog/a-brief-overview-of-the-new-brandeis-
school-of-antitrust-law/> accessed 6 June 2020.
101
This school supports the structural approach principles from Harvard school and is named after Justice
Brandeis of United States who pointed out that non-economic factors also need to be looked into under
competition law.
Herbert J Hovenkamp, ‘Is Antitrust’s Consumer Welfare Principle Imperiled?’ 45 The Journal of Corporation
Law 31 < https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2987&context=faculty_scholarship>
accessed 7 June 2020.

23
venture to Amazon. Upon refusal, Amazon started engaging in predatory pricing and other
"notorious" strategies (Amazon mom category rolled out) that impacted Quidsi to the extent
that it forced into considering a sale and lost investor confidence.102 Despite Wal-Mart giving
Quidsi a better offer, interestingly, Quidsi eventually struck a deal with Amazon, mainly due
to the tactical measures adopted by Amazon executives.103

The idea of consumer welfare needs to be broadened by looking at both micro and macro
factors, micro level includes how consumer data is collected per different categories of
consumers on a platform and see if this is generating consumer welfare or causing consumer
harm. Instead of drawing narrow specific markets which do not reflect actual market realities,
it is better to look at what kind of market attention is in play104. This approach amongst other,
reflect the neo-brandesian hipster antitrust school advocated by Lina Khan, Tim Wu and
others, particularly relevant in disruptive innovation driven markets. This school of
competition law evaluates the effect of under-enforcement of competition law in dynamic
technology markets.105

Blinded reliance on the Chicago school approach creates a loophole by helping platforms that
rely on the consumer welfare argument and not indicating in black and white how consumer
welfare is enhanced when they are practically foreclosing competition through such
strategizing.106Sectoral-specific regulation should be the first step, followed by the overall
competitive assessment by the competition authorities. These cues can be taken from
Competition Commission of India v Bharti Airtel Limited and Others107, where the apex
court held that the questions should first be decided the Telecom Regulatory Authority of
India (TRAI) empowered under the special act of 1997. Once that is done, CCI steps in to
assume its role as a competition regulator. It is criticized that incorporating new regime rules
and regulations in the existing competition legislation will lead to various glitches because of
swiftly moving dynamic markets (Jones and Sufrin).108 However, taking guidance from the
Bharti Airtel case, such regulations can be incorporated in the special legislation already
existing in India, such as the Information Technology Act, 2000, and upcoming data
protection laws and regulations (which are currently in bill stage). Accordingly, a stepwise
approach, as taken in Bharti Airtel case, can be then applied.

Online e-commerce platforms may be viewed as akin to natural monopolies, that needs to be
regulated by a robust and competent authority to prevent abuse of dominance. Instead of

102
Lina Khan (n 96) 768-770.
103
‘Who Should Antitrust Protect? The Case of Diapers.Com’ (American Enterprise Institute - AEI, 5
November 2018) <https://www.aei.org/technology-and-innovation/who-should-antitrust-protect-the-case-of-
diapers-com/> accessed 11 May 2020, Will Oremus, ‘How Amazon Went Thermonuclear on Diapers.Com’
(Slate Magazine, 10 October 2013) <https://slate.com/technology/2013/10/amazon-book-how-jeff-bezos-went-
thermonuclear-on-diapers-com.html> accessed 11 May 2020.
104
Andrea Prat and Tommaso Valletti, ‘Attention Oligopoly’ SSRN
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3197930> accessed 11 June 2020.
105
Ibid.
106
Jacques Cremer, Yves Montjoye and Heike Schweizer (n 22) 3.
107
[2018] MANU/SC/1423/2018 (Supreme Court) < www.manupatra.com > accessed 2 May 2020.
108
Alison Jones and Brenda Sufrin, EU Competition Law: Text, Cases, and Materials (Oxford University Press
2016) 51 < https://books.google.co.in > accessed 7 May 2020.

24
limiting the construction of natural monopolies to railways, telecom network and other
government monopolies, a similar approach can be taken for disruptive models. Disruptive
models, if they display "natural monopoly characteristics," can be regulated similarly with
requisite changes deemed fit.109 There are differing views on platforms being akin to natural
monopolies considering their pervasive network effects and "ability to drive markets"110in the
European Union itself. However, in my view, supporting OECD Background note111
analysis, considering platforms as natural monopolies to a limited extent and applying
regulation where necessary, can reap more benefits than opposing such a similar treatment.112
The question is, "how that industry be made to operate in a way that is beneficial to society as
a whole?"113

2. CONCLUSION- THE WAY AHEAD

Instead of looking solely at the consumer welfare paradigm, competition regulation should
holistically view the peculiar facts and circumstances coupled with the business structure at
hand. It may seem that specific effects considered individually may not seem problematic,
however "cumulative effects"114 as an example regarding the impact on intermediaries,
business conduct, counterfactual assessments for business justifications, etc. help in
improving qualitative assessment of vertical agreements. These cumulative effects refer to
how a particular business model is tipping the market through manipulation of its customers
and entire gamut of intermediaries present in it owing to its ever increasing user base. It is
essential to delve into detail as to the rationale behind mergers of big platforms and measure
the realities in the context of answering whether the given efficiency can be without the
merger, e.g., inter-operability agreements, transaction-specific agreements, etc.115

Against the peculiar nature of the case laws referred above, an exhaustive list of factors or
regular assessment tools cannot be adopted for analyzing competition. Even while
establishing a causal relationship between the conduct in question and its effects, a
meaningful link should be established. Suppose there are price-parity clauses in question to
insulate a platform from a genuine free-rider issue on the one hand. On the other hand, a
platform is using the free-rider argument as a business justification so that it continues to use
such negative covenants, ultimately pushing viable competitors’ out of the market. In order to
discern between these two situations, it is important to establish “right” causal links. These
links help in understanding the product and geographic market dimensions and identifying
how wide or narrow the market realistically is.

109
OECD, ‘Competition For The Market’ Global Forum on Competition [2019] 1-52
<https://one.oecd.org/document/DAF/COMP/GF(2019)7/en/pdf> accessed 6 May 2020.
110
Ibid 2.
111
OECD, ‘Competition For The Market-Background Note by the Secretariat’ [2019] 1-52, 10-11
<https://one.oecd.org/document/DAF/COMP/GF(2019)7/en/pdf> accessed 8 May 2020.
112
OECD, ‘Competition For The Market’ Global Forum on Competition [2019] 1-52, 3
<https://one.oecd.org/document/DAF/COMP/GF(2019)7/en/pdf> accessed 6 May 2020.
113
Richard Whish and David Bailey, Competition Law (2012) 7 Oxford University Press, 10.
114
Ibid 626 & 631.
115
Ibid 123.

25
In Google I striking similarities were observed with the definition of relevant product market
of online search advertising when compared with the Microsoft/Yahoo search business case.
While in Google II which is currently under investigation, the geographic market was
delineated as India instead of ‘worldwide excluding China’ as done in Google Android
decision, despite having similar merits. These ‘cherry-picking’ tendencies will lead to
absurdities and challenges for competition regulation. If CCI is attempting to determine
relevant markets differently than decided cases, then a reasoned approach as to why it did not
follow say the EU definition or the FTC analysis should be given out (justify the
departure?).116 This allows legal certainty, which is absent from the current competition
regime in India.

Instead of shunning away from dealing with other laws such as data protection, foreign direct
investment, consumer protection etc., it is important to understand the growing convergence
of special laws when it comes to digital platforms. Even if the goals and ultimate objective of
such laws are different, nevertheless there is a need to understand their inter-relationship. The
Bundeskartellamt (Germany) noted the same while deciding the anti-competitive allegations
against Facebook.117 For understanding whether privacy preference options given by
Facebook gave users real control to change permissions, Bundeskartellamt noted that the
ultimate control rested with Facebook itself which falls within anti-competitive conduct.118
Within Europe itself, the regulation varies such as Germany decided the Facebook case via
Bundeskartellamt (competition framework) while Italy decided the Facebook case under its
consumer code via AGCM.119 This shows that regulation of digital markets is complex more
particularly with the intersection of special laws viz consumer code, data protection laws etc.

The idea of markets’ self-correcting nature in the context of disruptive digital platforms does
not hold water as there are infinite opportunities and loopholes to engage in anti-competitive
conduct coupled with the pervasive network effects and entry barriers. The intensity of such
factors disallow any potential entrant from entering the given market. The potential entrant
refers to not only the horizontal competitor(s) in the same level of market, for instance say
Google versus a new search engine. But also vertical competitor(s) eg. publishers,
advertisers, suppliers etc. who are left with no choice apart from acceding to the onerous
business terms or arrangements strategized by the disruptor. This is why complex
assessments of how the market works needs to be included within the first step of the market
definition inquiry.

Even though innovation needs to be fostered and dynamic efficiency should grow, however
competition regulators need to identify and explore the risky business models and strategies
that destroys competition. If that identification is itself missing and markets are delineated

116
Pablo Colomo, ‘A Contribution to “Shaping Competition Policy in the Era of Digitisation”’ (Social Science
Research Network 2018) SSRN Scholarly Paper ID 3257998, 8 <https://papers.ssrn.com/abstract=3257998>
accessed 23 Feb 2020.
117
Marco Botta and Klaus Wiedemann, ‘The Interaction of EU Competition, Consumer and Data Protection
Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey’ [2019] 64 (3) The Antitrust
Bulletin 428-446, 439 <https://journals.sagepub.com/doi/10.1177/0003603X19863590> accessed 29 Jan 2020.
118
Ibid 440.
119
Ibid.

26
mechanically then more leeway is automatically granted through regulation itself. Even if it is
difficult to assess economic and qualitative data technology effects, another route is to go to
the nomenclature of the commercial understandings.120 Refer to the recitals, the intention of
the parties, roles and obligations, market surveys, business plan identification, and
sophisticated qualitative tools by involving expert panelists etc.121 that may offer better cues
than a complex economic or data related assessment. Without focusing on development of
useful precedents of market delineation in disruptive models, competition regulation falters.

120
Howard Shelanski, ‘Information, Innovation and Competition Policy for the Internet’ (2013) 161 (6) U Pa L
Rev 1704< https://heinonline.org/HOL/P?h=hein.journals/pnlr161&i=1693 > accessed 10 Jan 2020.1704.
121
OECD Directorate for Financial and Enterprise Affairs, ‘The Impact of Disruptive Innovations on
Competition Law Enforcement-Summary of Discussion’ [2016] 1-11 <
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/GF(2015)16/FINAL&do
clanguage=en> accessed 30 Dec 2019.

27
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30
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31