Cartels Comparative Guide -

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions apply to cartels in your jurisdiction?

Section 3 of the Competition Act, 2002 prohibits anti-competitive agreements, including cartels. While all kinds of anti-competitive agreements are prohibited under Section 3(1), any agreements which have the following effects are deemed to have an appreciable adverse effect on competition:

directly or indirectly determining purchase or sale prices;
limiting or controlling production, supply, markets, technical development, investment or the provision of services;
sharing markets, sources of production or provision of services, types of goods or services, or number of customers in the market, or any other similar effects; and
directly or indirectly resulting in bid rigging or collusive bidding.

Cartel investigations are governed by Section 19, read with Sections 26 and 27 of the Competition Act. In addition, the Competition Commission of India (General) Regulations, 2009 set out the procedure for handling investigations into anti-competitive agreements.

1.2 Do any special regimes apply to cartels in specific sectors?

No special regimes apply to cartels in specific sectors. Prior to 3 July 2021, vessel sharing agreements in the liner shipping industry were excluded from the general prohibition on anti-competitive agreements, including the prohibition on cartels. However, this exemption was not renewed.

1.3 Which authorities are responsible for enforcing the cartel legislation?

As per the Competition Act, the Competition Commission of India (CCI) is responsible for enforcing the prohibition on cartels.

1.4 How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?

In the past year, the CCI has been very active in investigating and taking action against cartels. In the first three months of 2022, it passed six orders in cartel cases, imposing total penalties of more than INR 600 million on companies.

In 2018, the CCI issued an order against certain players in the tyre industry for "indulging in cartelisation by acting in concert to increase the prices of cross ply/bias tyres variants sold by each of them in the replacement market and to limit and control production and supply in the said market". While the CCI issued the order in 2018, it was kept under seal cover as per the directions of the Madras High Court and was released only recently.

The CCI also issued a cease-and-desist order against Dumper Truck Union for determining the prices to be charged in concert and for limiting and controlling the provision of services. Before this, the CCI imposed an aggregate fine of INR 630 million on four maritime transport companies.

2 Definitions and scope of application

2.1 How is a 'cartel' defined in the cartel legislation?

The Competition Act defines a 'cartel' as "an association of producers, sellers, distributors, traders or service providers who, by agreements amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or trade in goods or provisions of services". Given that this is an inclusive definition, other concerted activities may also fall under the provisions on cartels.

2.2 What specific offences are defined in the cartel legislation?

Agreements, decisions and similar arrangements/understandings between undertakings engaged in the same or similar trade of goods or provision of services that have the following are presumed to have an anti-competitive effect on competition and are therefore prohibited:

directly or indirectly determining purchase or sale prices;
limiting or controlling production, supply, markets, technical development, investment or the provision of services;
sharing markets, sources of production or provision of services, types of goods or services, or number of customers in the market, or any other similar effects; and
directly or indirectly resulting in bid rigging or collusive bidding.

An exemption to this presumption is provided to joint venture agreements if they improve efficiencies in the production, supply, distribution, storage, acquisition or control of goods or provision of services.

Further generic exemptions to the prohibition on anti-competitive agreements are provided to:

agreements which restrain infringements of IP rights or impose reasonable conditions for the protection of IP rights; and
agreements which relate exclusively to the production, supply, distribution or control of goods or provision of services for export.

2.3 Is liability under the cartel legislation civil, criminal or both?

The liability under Indian competition law is civil in nature.

2.4 Can both individuals and companies be prosecuted under the cartel legislation?

The Competition Commission of India (CCI) can impose fines on companies and individuals which engage in cartelisation.

As per the Competition Act, the CCI can impose fines on persons or enterprises which are parties to the anti-competitive agreement. The term 'person' includes:

companies;
individuals;
unincorporated bodies;
corporations incorporated outside India; and
all artificial juridical persons.

Further, the Competition Act provides that where a company has committed the contravention, anyone who, at the time of the contravention, was in charge of and responsible for the conduct of the business of the company, as well as the company itself, will be deemed to be guilty of the contravention and will be liable to prosecution.

2.5 Can foreign companies be prosecuted under the cartel legislation?

Yes, under the Competition Act, the CCI can investigate the conduct of foreign companies if such conduct has, or is likely to cause, an appreciable adverse effect on competition in the relevant market in India.

2.6 Does the cartel legislation have extraterritorial reach?

Yes, the Competition Act has extraterritorial reach. Section 32 of the Competition Act states that even if an agreement is entered into outside India or if any party to such agreement is outside India, or even if any action arising from the agreement is outside India, as long as the agreement has or is likely to have an appreciable adverse effect on competition in the relevant market, the CCI has the power to conduct an inquiry into that agreement.

Recently, the CCI exercised its extraterritorial powers in the cartel case of Maritime Motor Vehicle Transport Services to Original Equipment Manufacturers, in which the CCI levied penalties on several Japanese maritime motor vehicle transport services companies even though the goods were not intended for Indian consumers (they were outbound for export).

2.7 What is the statute of limitations to prosecute cartel offences in your jurisdiction?

There is no limitation period prescribed under the Competition Act to impose fines on or initiate an inquiry into a cartel.

3 Investigations – general

3.1 On what grounds may the enforcement authorities commence an investigation?

An inquiry into a cartel may be commenced by the Competition Commission of India (CCI) based on the following:

suo moto cognisance by the CCI;
reference made by governmental or statutory authorities in India;
complaints made by third parties, including consumer associations and trade associations;
information received from individuals; and
leniency applications by one or more members of the cartel.

Upon receipt of the complaint, the CCI will conduct a preliminary inquiry based on the information made available by the complainant and the information available in the public domain. After that, it will form a prima facie opinion on whether a case exists. If it is of the opinion that a case exists, it will direct the director-general to investigate further.

3.2 What investigatory powers do the enforcement authorities have in conducting their investigation?

The Competition Act gives extensive powers to the CCI to investigate competition law-related contraventions. The CCI can direct anyone to provide any books or documents under that person's control for examination. It may also issue requests for information to any person by giving notice under Section 36(2) of the Competition Act. In addition, the director-general can issue similar notices under Section 41(3) of the act. Failure to furnish information requested under these sections attracts a penalty of INR 100,000 for each day of delay, subject to a ceiling of INR 10 million.

In addition to these powers, the CCI and the director-general can:

summon and enforce the attendance of any person and examine them on oath;
require the discovery and production of documents;
receive evidence on affidavit;
issue commissions for the examination of witnesses or documents; and
subject to the provisions of the Evidence Act, requisition any public record.

3.3 To what extent may the enforcement authorities cooperate with their counterparts in other jurisdictions during their investigation? How common is such cooperation in practice?

While the CCI frequently cooperates with its international counterparts on merger control matters, the details of cooperation on cartel-related issues are not known in the public domain. The CCI has signed several bilateral cooperation agreements with several antitrust agencies worldwide.

3.4 Is there an opportunity for third parties to participate in the investigation?

If the CCI so permits, third parties can participate in the investigation process. To participate, the third party must satisfy the CCI that:

it has a substantial interest in the outcome of the proceedings; and
it is necessary in the public interest to allow such a person to participate in the proceedings.

A more common form of participation by third parties is in response to requests for information sent out by the CCI.

3.5 What are the general rights and obligations of the enforcement authorities during the investigation?

Please see question 3.2. While the CCI is not required to hear the parties while forming its prima facie opinion, it must allow concerned parties to be heard before making a final decision. The parties can make oral submissions or file written arguments in their defence.

3.6 What are the general rights and obligations of the target company during the investigation?

The CCI has the same powers as a civil court, so the right of defence is considered sacrosanct. This includes:

the right to legal privilege; and
the right to the applicability of principles of natural justice as recognised by Indian courts.

The constitutional right against self-incrimination is also applicable to antitrust proceedings.

However, as mentioned in question 3.2, the failure to furnish information requested by the CCI without reasonable cause will attract a fine.

3.7 What principles of attorney-client privilege apply during a cartel investigation?

While the Competition Act has no provisions on attorney-client privilege, this is governed by the Evidence Act, 1872. Privilege is accorded to communications with external lawyers and is generally not available to in-house counsel, who are company employees.

3.8 Are details of the investigation publicly announced? If so, what principles of confidentiality apply?

The investigation is not made public in cartel cases as a general principle. The CCI publishes the final orders. The publicly available versions of orders are non-confidential. The CCI will generally redact all information claimed confidential by the parties.

4 Investigations – step by step

4.1 What initial steps do the enforcement authorities take to commence a cartel investigation?

After forming its prima facie opinion that a prima facie case has been made out based on the information available to it (please see question 3.1), the Competition Commission of India (CCI) will direct the director-general to investigate the matter. Although the director-general is a part of the CCI, he is required to investigate the matter independently without being influenced by the prima facie opinion of the CCI. Typically, the allegations and issues raised in the prima facie opinion will be the focal point of the investigation. However, at times, the director-general may, based on additional information, identify different issues involving other contraventions of the Competition Act or the involvement of more parties in violations of a similar nature. In such a case, the director-general has the power to expand the scope of the investigation.

As part of the investigation, the director-general will issue requests for information to the parties and third parties.

4.2 Are dawn raids commonly conducted in your jurisdiction? If so, what are the pre-conditions for conducting a dawn raid? When, where and by whom are they conducted? Do the enforcement authorities have the power to search private as well as company premises?

The director-general orders dawn raids as part of the search and seizure operations. In 2021-22, the CCI conducted three dawn raids followed by two raids in April 2022. The preconditions for a dawn raid are as follows:

The director-general must apply to the chief metropolitan magistrate, Delhi, for a search warrant. To obtain a search warrant, the director-general must demonstrate that there are reasonable grounds to believe that the target undertaking or person would otherwise not produce the documents and is likely to conceal or remove them. The warrant authorises the officers of the director-general to:
- enter the place specified in the warrant;
- search the location specified in the warrant; and
- seize all books and records, including electronic records, that he considers necessary for the investigation.
Further, the director-general must ensure that at least two independent witnesses are present during the search operations.

Investigation units of the director-general conduct dawn raids and such units comprise the officers working on the investigation. Generally, the officers will search the premises of the undertakings suspected to be involved in the cartel activities; this may apply to both companies and individuals. However, if the officers have reason to believe that documents or records are kept at places other than the offices of such undertakings (eg, direct premises); in that case, they may request a search warrant for those premises too.

4.3 What powers do officers have during the dawn raid? Are there any limitations on these powers?

The director-general has wide powers of search and seizure under the Competition Act. In exercising these powers, officers of the director-general may:

enter, with such assistance as may be required, the place or places where such books and papers are kept;
search such places;
seize all books and papers - including electronic records such as hard disks, CDs and pen drives - which they consider necessary for their investigation; and
take statements from any person present on the premises on oath or affirmation.

4.4 What are the rights and obligations of the target company and any individuals targeted during a dawn raid?

While the right to consult external lawyers is not enshrined in statute, the target undertaking can consult its lawyers and request that the officers wait until counsel arrives. However, the officers are not required to do so and will often commence the raid immediately upon arrival.

The target undertaking can request to verify the identity of the officers conducting the raid and to see the search warrant. Further, the officers must provide a copy of the panchnama (a record signed by witnesses regarding the search and a list of documents/assets seized by the officers), statements and a list of the seized material to the undertaking. The undertaking also has a right to call a medical practitioner if any individual feels unwell.

The target undertaking must cooperate with the search and seizure operation.

4.5 What evidence can be seized during a dawn raid? Do the enforcement authorities have the power to interview witnesses and take statements during a dawn raid?

Officers of the director-general can seize any document necessary for the investigation, including both physical records and electronic documents, such as hard disks. As mentioned in question 4.3, the director-general can:

require any person to provide an explanation in relation to any documents, books or records; and
during the dawn raid, request any person to provide a statement, which can be used against the enterprise during the investigation.

4.6 How can a company best prepare itself for dawn raids? What best practices should it follow in the event of a dawn raid?

Companies that suspect or learn that the CCI has launched an investigation should take the following steps:

Prepare an internal playbook for dealing with dawn raids which includes the steps to be taken by each employee who is expected to engage with the investigation team. These employees should be provided with a checklist for dealing with the investigation.
Receptionists and security guards should have a directory of employees who should be contacted immediately upon the arrival of a search party. This should include the contact details of the outside counsel engaged to deal with antitrust matters.
Identifying privileged documents in advance also helps to mitigate the risk of such documents being downloaded or seized during the dawn raid.

It is important to look at the search warrant to ensure that the search does not exceed the scope set out in the warrant (although this scope is generally exhaustive). During a dawn raid, the undertaking should cooperate with the search team. Employees can shadow the search team and should prepare a record of the records and documents seized by the search team. These records should be tallied with the panchnama shared by the search team. To the extent possible, privileged and confidential documents should be identified (only by nature and not by content), and the search team should be notified of the same.

4.7 What are the next steps in the cartel investigation following a dawn raid? What timeframe do these typically follow?

At the time of directing the director-general to initiate an investigation, the CCI will provide indicative timelines for the completion of the investigation and submission of the director-general's report to the CCI. These timelines cannot exceed 60 days from receiving the prima facie order. However, these timelines are merely directory. A dawn raid is one of the investigation tools available to the CCI. Therefore, there is no specified timeframe within which the investigation must be completed following a dawn raid. After the dawn raid, and on the evidence gathered during the investigation, the director-general may issue summons to the parties and to certain other third parties to appear before it for a deposition.

After completing the investigation, the director-general will submit his report to the CCI. The CCI may request the director-general to provide a supplementary report if it requires more information.

The investigation report will be shared with the parties, which will be requested to provide their comments/objections to the same. The parties have the right to inspect the documents.

As per the Competition Act, the parties must file their objections within 15 days of receipt of the investigation report. However, this timeline is generally extended at the request of the parties. The CCI follows the principles of natural justice, and the parties are allowed both to make submissions in an oral hearing and to submit their pleadings in writing.

After completing any oral hearings, the CCI has three weeks to decide. This decision is made by a majority vote of the members.

As the report submitted by the director-general does not bind the CCI, its decisions must be taken by way of independent assessment.

4.8 What factors will the enforcement authorities consider in assessing whether cartel activity has taken place?

To assess cartel activity, the CCI must establish that there was an agreement (including implicit agreement) between the parties. As mentioned in question 1.1, the Competition Act identifies certain agreements presumed to cause an appreciable adverse effect on competition. Cartelisation activities fall within this presumption. The parties can rebut this presumption by proving that the agreement did not have an appreciable adverse effect on competition.

The following factors are taken into account in determining whether cartel activity has taken place are set out in the Competition Act:

creating barriers to new entrants in the market;
driving existing competitors out of the market;
foreclosing competition by hindering entry to the market;
accruing benefits for consumers;
making improvements to the production or distribution of goods or provision of services; or
promoting technical, scientific and economic development through the production or distribution of goods or provision of services.

4.9 In case of a finding of cartel activity, can the company seek to negotiate a settlement, plea bargain or similar resolution? If so, what is the process for doing so?

The Competition Act makes no provision for the settlement of cartelisation cases. A proposal on including provisions relating to the settlement of cartel cases has been made but has not yet been placed before Parliament.

5 Leniency

5.1 Is a leniency programme in place in your jurisdiction? If so, how does this function?

India has a leniency programme for cartels. The leniency programme is governed by the CCI (Lesser Penalty) Regulations, 2009, which set out the procedure for applying for leniency and the quantum of reduction that can be granted to informants based on the priority recognised by the Competition Commission of India (CCI). In recent years, most cartel investigations have originated from leniency applications.

At present, three types of informants can apply under the leniency programme:

applicants that are the first to make a vital disclosure that leads the CCI to make a prima facie opinion on the existence of a cartel;
applicants that make a vital disclosure that assists the CCI in establishing the existence of a cartel during an ongoing investigation in which the CCI or the director-general had insufficient evidence to prove the anti-competitive conduct of members suspected to be part of the cartel; and
applicants that disclose information after the above two categories of informants, but which nonetheless make significant value addition to the evidence already in possession of the CCI or the director-general that helps to establish the cartel's existence.

Applicants in the first two categories may request a 100% penalty waiver. At the same time, applicants in the third category may also receive a specific reduction in the penalty, depending on the priority recognised by the CCI.

5.2 What are the benefits of applying for leniency, both for the first mover and for subsequent applicants?

As mentioned in question 5.1, leniency applicants may benefit from a reduction of up to 100% of the penalty levied by the CCI:

The first mover may obtain a penalty reduction of 100%;
The second applicant may receive a penalty reduction of around 50%; and
The third and subsequent applicants may benefit from a penalty reduction of about 30%.

While the CCI generally grants a 100% reduction to the first applicant, this reduction is not a matter of right and depends on several factors, such as:

the information already available to the CCI;
the stage of the investigation (if the information is being provided for an existing investigation); and
whether the information is considered a vital disclosure by the CCI.

For example, in a recent case, the first applicant for leniency received an 80% reduction in the penalty, as it had approached the CCI after the investigation had already been ordered.

One factor recently taken into account by the CCI in determining the quantum of reduction was 'leniency plus', where the applicant disclosed the existence of another cartel. While 'leniency plus' has not been statutorily recognised, the CCI considered the legislative intent (as reflected by proposed reforms to the Competition Act) to introduce leniency plus when determining the quantum of reduction.

5.3 What steps does a leniency application involve? What timeframe do these typically follow?

A leniency application begins with an informal discussion with the CCI concerning the provision of evidence on the cartel activity. This discussion can be initiated either orally or in writing by email or fax and is the first step towards securing the party's place in the lenience queue. Based on this discussion, the CCI will revert to the applicant providing priority markers. The applicant must then provide a written application for leniency along with the required information within 15 days.

The CCI will not evaluate the information supplied by subsequent applicants until it has assessed the information provided by the first applicant. Given that the penalty reduction is directly linked to the substance and value of the information provided to the CCI, it is essential to be ranked higher in the queue so that the information supplied will be evaluated on a priority basis.

5.4 What are the rights and obligations of the applicant during the leniency application and over the course of its cooperation with the enforcement authorities?

A leniency applicant must cease its participation in the cartel activities from the date of disclosure (unless directed otherwise by the CCI). As the penalty reduction is intrinsically linked to the value of the information provided, the applicant must provide vital disclosures and relevant information or evidence directed by the CCI. Full and bona fide cooperation with the investigation is a prerequisite.

Further, the applicant must also provide the names of the individuals who have been involved in the cartel on its behalf and for whom such an applicant seeks a lesser penalty.

Generally, the identity of the applicant and the information supplied by it are kept confidential. The director-general may disclose the information shared by the applicant in some instances if such disclosure is essential for the investigation. However, the director-general must record his reasons for such disclosure in writing and seek prior approval from the CCI.

5.5 Is the leniency programme open to individuals? Can employees or former employees benefit from a leniency application filed by their employer? Do the authorities operate a programme for individual whistleblowers separate to the leniency programme?

There is no separate leniency programme for individuals. Any person (including an individual) can apply for leniency under the Lesser Penalty Regulations.

If an enterprise is filing a leniency application, it must mandatorily disclose the names of the individuals who have been involved in the cartel on its behalf.

5.6 Can leniency be denied or revoked? If so, on what grounds?

Yes. The CCI has discretionary powers to deny leniency if the applicant does not adhere to the leniency conditions or does not fully cooperate with the CCI.

6 Penalties and sanctions

6.1 What penalties may be imposed in criminal proceedings on companies? What penalties may be imposed on individuals?

There are no criminal proceedings regarding cartel activities in India.

6.2 What penalties may be imposed in civil proceedings on companies? What penalties may be imposed on individuals?

Enterprises found to have engaged in cartel activity are subject to a penalty of the higher of:

up to three times the profit made by such enterprise for each year of the continuance of cartel; or
10% of the turnover of the enterprise for each year of the continuance of the cartel.

Individuals who have participated in a cartel or were in charge of the business of the enterprise engaged in cartel activity may be levied a penalty of up to 10% of their income for each year of the continuance of the cartel.

6.3 How are penalties in cartel cases determined? In deciding on the applicable penalties, will the enforcement authorities consider penalties imposed in other jurisdictions?

There are no guidelines on the calculation of penalties by the Competition Commission of India (CCI). Further, the Competition Act has no statutory prescription on which factors must be considered when determining the quantum of penalties. However, the following factors are generally taken into account when determining the penalty:

the nature, gravity and extent of the contravention;
the role played by the cartel participant (ie, whether it was the ringleader or a follower);
the timelines regarding the continuation of the cartel;
the intensity of participation;
the loss or damage resulting from the anti-competitive agreement;
prevailing market conditions (eg, market conditions during the COVID-19 were taken into account in determining the quantum of penalty);
the nature of the product;
the market share of the cartel participant;
barriers to entry in the market;
the cooperation extended in the investigation by the cartel participant; and
the profit derived from the contravention.

Any penalties imposed in other jurisdictions are not officially taken into account. However, the CCI will take note of whether a penalty has been levied in other jurisdictions and any history of such penalties.

6.4 Can a defendant company pay the legal costs incurred by and/or penalties imposed on its employees?

Yes. Subject to the bylaws and policies of the company, it may pay the legal costs of the employees. For penalties, the company may indemnify employees based on its bylaws.

7 Appeal

7.1 Can the defendant company appeal the enforcement authorities' decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and to which reviewing authority? What is the standard of review applied by the reviewing authority (eg, limited to errors of law or a full review of all facts and evidence)?

Yes, appeals against decisions of the Competition Commission of India (CCI) are brought in the first instance to the National Company Law Appellate Tribunal (NCLAT). NCLAT's decision may then be appealed to the Supreme Court of India. However, an order of the CCI to initiate an investigation cannot be appealed.

NCLAT may examine the facts, the law, and the quantum of penalty in reviewing the decision of the CCI.

An appeal will not automatically stay the obligation to pay the penalty unless specifically directed. Generally, the parties will seek a stay of the CCI's order, which may be granted by NCLAT based on the balance of convenience.

7.2 Can third parties appeal the enforcement authorities' decision, and if so, in what circumstances?

Yes, but only if the third party can establish that it is aggrieved by the CCI's decision.

8 Private enforcement

8.1 Are private enforcement actions against cartels available in your jurisdiction? If so, where can they be brought?

Yes, the Competition Act provides for the private enforcement of compensation claims. Such a compensation claim must be made before the National Company Law Appellate Tribunal (NCLAT) based on:

findings of the Competition Commission of India (CCI) on anti-competitive conduct;
an order of NCLAT in an appeal against the CCI's findings; or
losses or damages suffered due to the contravention of directions issued by or an order passed by the CCI.

However, to date, no claim for compensation has been awarded on account of proceedings pending before the Supreme Court.

8.2 Can private enforcement actions be brought against both companies and individuals?

Compensation claims can be filed against companies. However, no such claim can be filed against individuals who are part of the management of cartel participants.

8.3 Are class actions or other forms of collective action available in your jurisdiction?

Yes, collective actions are recognised under the Competition Act. Persons with the same interest can initiate a collective action for loss or damage.

8.4 What process do private enforcement actions follow?

Anyone that has suffered losses or damages on account of the anti-competitive actions of a party can approach NCLAT to seek compensation, as long as the claim for compensation arises from the findings of the CCI or an order of NCLAT. After inquiring into the allegations made in the compensation application, NCLAT may direct the cartel participant to pay such amounts as it determines to the claimant against the losses or damages suffered by the claimant.

8.5 What types of relief may be sought and what types of relief are most commonly awarded? How is the relief awarded determined?

As mentioned in question 8.1, private enforcement is limited to compensation claims. The remedy available is compensation for losses suffered by the claimant. To date, no such compensation has been awarded by the judicial forums in India in any cartel case.

8.6 Can the decision in a private enforcement action be appealed? If so, to which reviewing authority?

An order of NCLAT relating to compensation may be appealed before the Supreme Court of India.

9 Trends and predictions

9.1 How would you describe the current cartel enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

While the first year of the COVID-19 pandemic slowed down cartel-related investigations and decisions of the Competition Commission of India (CCI), investigations - including dawn raids - gathered pace again in 2021-2022. It is anticipated that the CCI will continue to come down heavily against cartel participants in the next 12 months and may also exercise extraterritorial jurisdiction.

A proposal on comprehensive reforms to the Competition Act was made in 2020, and the amendments were set to be placed before the legislature in March 2022; however, this has not yet happened. The amendments include proposals on:

the recognition of hub-and-spoke cartels and buyers' cartels;
the requirement to deposit at least 25% of the penalty for appealing a decision of the CCI;
the inclusion of settlement and plea-bargaining mechanisms; and
the introduction of the leniency plus regime (see question 5.2).

10 Tips and traps

10.1 What would be your recommendations to companies faced with a cartel investigation and what potential pitfalls would you highlight?

While the leniency route appears to be a popular choice for reducing the quantum of penalties, companies should choose this option keeping in view the possibility of appealing the decision of the Competition Commission of India - especially with regard to factors such as:

the fact that Indian law does not protect leniency applicants from private enforcement actions; and
the cost of cooperating with the competition agencies during the investigation, providing access to sensitive documents.

If alerted to the possibility of cartel participation, companies should conduct an internal review to ascertain the extent of the contravention. This will also help the company determine whether it has any documents that may help its case should a formal investigation be directed. A meeting with key employees and public relations to streamline the messaging and approach may also be helpful.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

India: Cartels Comparative Guide