Fair trade watchdog CCI plans to tweak the norms pertaining to confidentiality requests made by parties concerned during proceedings under the competition law.
Changes have been proposed as the present practice and procedure are highly onerous and unsatisfactory not only for the parties but also for the regulator which has caused unnecessary litigation and delays in concluding the inquiry, according to the Competition Commission of India (CCI).
Comments from stakeholders on the proposed changes have been sought till May 12.
The watchdog said comments have been invited on the “proposed review of the extant confidentiality regime in light of experience gained and difficulties faced,” as per a communication posted on CCI website.
Under the competition law, there is a statutory restriction on disclosure of certain information during a proceeding in order to maintain sanctity of the information relating to any enterprise.
Now, the regulator has proposed changes to regulations regarding the extant confidentiality regime. The regime provides a detailed mechanism to deal with the confidentiality request made by the parties and provides the procedure and the parameters for such claims.
The regulator noted that the present practice of filing of pleadings in two versions — confidential and non-confidential — would continue but on “self-certified basis”, stating and undertaking categorically that such versions have been prepared in accordance with the parameters for seeking confidentiality as per the new regulation.
“This would obviate the need for determination of confidentiality claims and the consequent appeals arising therefrom and would result in swifter disposal of inquiries,” CCI said in the communication.
Company secretaries/ compliance officers or any other senior officer authorised by the party concerned would give such undertakings.
Among others, the existing regime which enables the informant to seek confidentiality over its identity on merely making a request in writing is also proposed to be done away with.
The regulator has also proposed setting up of a “confidentiality ring” which will comprise authorised representatives (internal and external) of the parties who would be able to review the entire case records in an unredacted form, subject to appropriate undertakings against disclosure.
“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 which may include officials and/ or employees of their competitors… or any other person whatsoever,” CCI said.
A set up similar to confidentiality ring may also be constituted at the level of DG”s office, if required, for investigation purposes, it added.
DG (Director General) is the investigation arm of the regulator.
The role of informant in such an arrangement would be decided on a case to case basis by the regulator so that commercially sensitive information is not unduly accessed by the informants. In appropriate cases, the informant through its authorised representatives may be made part of the confidentiality ring, the regulator said.
“However, the Commission may accord confidentiality over the identity of the Informant in appropriate cases,” as per the regulator.
Presently, the parties file submissions to the DG or the Commission in confidential and non-confidential versions along with an application for seeking confidentiality which necessitates a clause by clause disposal of such claims.
If DG declines claim of confidentiality, the aggrieved party may file an appeal before the Commission challenging the order, which again requires a clause by clause examination of such claims in appeal.
After the final disposal of such claims, parties have to submit revised versions in light and in accordance with the final decision on confidentiality claims. This necessitates multiple filings by the parties and record keeping, according to the communication.
Moreover, on many occasions, the parties seek access to confidential versions of the submissions/ filings/ DG report by other parties so as to effectively present their cases.
“As the markets are dynamic, any delay in concluding the process defeats the purpose of anti-trust investigations,” it noted. PTI