On July 30, during the first hearing of All India Online Vendors Association’s (AIOVA) appeal against the Competition Commission of India’s (CCI) clean chit to Flipkart over the issue of abuse of dominant position to favour “preferred sellers” through unfair and discriminatory pricing, the National Company Law Appellate Tribunal (NCLAT) questioned the nature of Flipkart as a platform and scheduled the next hearing for August 14 at 11:30 am. In the Chairperson’s Court, the three-person bench, comprising NCLAT Chairperson Justice S. J. Mukopadhaya, Justice A. I. S. Cheema (Judicial Member), and Kanthi Narahari (Technical Member), instructed Chanakya Basa, who was representing AIOVA, to answer three questions in the next hearing: What is the product that online vendors sell? Is it a virtual product (referring to data collection by Flipkart)? How do members of AIOVA use the platform? Does AIOVA pay to use Flipkart’s platform, unlike the general public who instead give up their data? Amit Sibal, Rajshekhar Rao and Yaman Verma are representing Flipkart in this case. There is no CCI lawyer on record. Tribunal: Is Flipkart abusing its dominance? Justice Mukopadhaya asked Basa what Flipkart’s market share was to understand if the company truly dominated the market. Basa cited a news report which predicted that Flipkart would account for 40% of the market share. The judge refused to accept it on the grounds that it was a projection that was used to justify allegations of current market dominance. He further said that a 40% market share meant that 60%…
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