The Competition Commission of India (CCI) is in the process of introducing a ‘confidentiality’ regime in line with the best global practices in consultation with stakeholders, it’s Chairman Ashok Kumar Gupta, has said.
In his virtual address at CII Annual Conference on Competition Law and Practice on Friday, Gupta said that CCI has been continuously streamlining processes and procedures to meet the demands of the times.
It maybe recalled that the CCI had in April 2021 published a draft proposal for public comment, to revisit the detailed mechanism for dealing with confidentiality claims made by parties under regulation 35 of the CCI (General) Regulations, 2009.
Currently, the CCI or the DG had to do a clause-by-clause disposal of the confidentiality claims made by the parties concerned. Now the parties will be allowed to self certify their confidentiality claims
The proposed regime requires parties seeking confidentiality to self certify their confidentiality claims; introduce a mechanism of confidentiality rings, which would comprise of the authorised representatives of the parties who would be able to review the entire case records in an unredacted form. The CCI is also proposed to be empowered to impose penalties against any defaulting parties.
Monika Deshmukh, Executive Director, Lumiere Law Partners, said that the proposed changes on confidentiality regime will help in swifter disposal of matters before the CCI. It will offer comfort to the disputing parties that disclosure of such information to any unauthorised person would be avoided and provide relevant parties access to the information at the same time.
Ritika Ganju, Partner, Phoenix Legal, said that the proposal to form a “confidentiality ring” with access to commercially sensitive and confidential information to authorised persons appointed by the parties is in line with the anti-trust confidentiality regime applicable in matured jurisdictions.
Such access, however, has to be with stringent checks and balances,which on the face of it have been prescribed in the proposed amendments. But implementation of the prescribed checks and balances will be the key to the success of this proposal, she said.
While hailing the proposed regime, Pritika Kumar, Founder and Sentinel Counsel, Cornellia Chambers, said the commission needs to provide a criteria for setting up these confidentiality rings and give an opportunity to the party disclosing the information to object the formation of confidentiality rings.
Rahul Goel, Partner, AnantLaw had a different take on the proposed regime. He said that the extant provisions and regulations under the Competition Act provides adequate mechanism for ensuring confidentiality of data, information or the informant. The confidentiality regime which is currently in place has also passed judicial scrutiny.
The proposed amendment to the confidentiality regime is likely to unsettle the established jurisprudence and may lead to increase in litigation, Goel said.
Aseem Chawla, Managing Partner, ASC Legal, said “there is a need of both efficient and effective dispensation which does address the needs of the competing parties with full and unhindered access to complete and unredacted information enabling parties to be able to put across their contentions. As market conditions are nimble and ever so dynamic, any delay in concluding the process for want of enquiry/investigation may defeat the very purpose”.