April 14, 2021 4:12:14 am
THE COMPETITION regulator, the Competition Commission of India (CCI), has sought public comments on a proposal that will allow certain employees of opposing parties in antitrust cases to view confidential information from their potential competitors. The regulation proposes to set up a confidentiality ring constituted of employees of the involved firms who are not part of commercial operations, which would have access to any unredacted information requested by parties in an antitrust case.
“Such a mechanism would enable all the parties to have access to all the relevant documents and, at the same time, would also ensure that the business-sensitive or commercially sensitive information is protected against disclosure to any unauthorised person,” the CCI said in its invitation for comments. The CCI has also proposed that parties in an antitrust case continue to submit both a confidential and non-confidential set of the version of filings before it, but that they do so on a self-certified basis, which would not require the regulator to review whether any information that should be provided has been excluded from non-confidential filings.
Experts were divided on the proposal, with some noting that the move was in line with processes in international jurisdictions. Others, however, said the move might lead to further delays as new jurisprudence is developed around confidentiality regulations.
“This is an excellent process and is also how some other jurisdictions are dealing with the sharing of confidential information in antitrust cases. This is also something that the CCI has used in practice in some recent matters, where counsels and a select few officers handling non-commercial roles, usually legal and compliance officers, are able to look at the unredacted version of filings,” said Rudresh Singh, partner at L&L Partners.
Anu Monga, partner at AnantLaw, however, said current regulations on confidentiality under the Competition Act and general regulations were sufficient, and allowed all parties to question the regulator on any orders regarding sharing of confidential information. Monga also said the regulations did not mention what penal action a party could be exposed to if they did not adhere to the CCI’s norms in their self-certified filings. There was no clarity on how the system would deal with any leaks of information from the confidentiality ring to the public, added Monga.
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