India: Recommendations On The Review Of Extant Confidentiality Regime Under Regulation 35 Of The Competition Commission Of India (General) Regulations, 2009

The initiative of the Hon'ble Competition Commission of India ("CCI"/ "Commission") to invite public comments on the amendments proposed to Regulation 35 of the CCI (General) Regulations, 2009 ("Proposed Amendment") is both commendable and much appreciated.

The manner in which confidentiality, under the competition regime in India, is treated and granted, provides immense confidence and assurance to a party not only with respect to the robustness of the legislation but also in regards to the entire institution. Provisions for confidentiality provide effective means to parties to safeguard sensitive information and their identities so as to avoid commercially disadvantageous positions within the market. Therefore, the treatment of confidentiality under competition law is of paramount importance to all stakeholders.

Over the years, India's competition regime has faced several difficulties on the aspect of confidentiality, which have been riddled with key concerns such as:

• Maintaining transparency of proceedings before the Commission;
• Providing adequate rights of defence to the parties; and
• Balancing the disclosure and protection of sensitive information, among others.

We, at AnantLaw (Solicitors & Advocates), hereby submit our views and observations with respect to confidentiality regime and more particularly the Proposed Amendments. We seek to open up areas of discussion and analysis to best address the issues and concerns in India's confidentiality regime under the Competition Act, 2002 including Proposed Amendments.

Our views and observations with respect to the Proposed Amendments are structured in two parts.

In the First part, we discuss and scrutinize the existing framework of confidentiality under the competition law regime as well other economic laws in India. Further, we also take into account the standards and the procedure being followed internationally in regards to confidentiality and confidentiality rings in competition/anti-trust litigations.

In the Second part, we encapsulate our recommendations and suggestions to the Proposed Amendment.

A. JURISPRUDENCE AND CONCEPT OF CONFIDENTIALITY

A1. Confidentiality Under the Competition Act, 2002

1. Section 57 of the Competition Act, 2002 ("Competition Act"/"Act"), restricts the disclosure of information collected by the CCI under the provisions of the Competition Act, except with the previous written consent of the disclosing enterprise or in compliance with or for the purposes of the Competition Act or any other law for time being in force. The same is reproduced below for ready reference:

2. Regulation 35 of the CCI (General) Regulation, 2009 ("General Regulations") provides for confidentiality over the identity of the informant as well over the information provided, by any of the parties to an investigation, to the Commission or the Director General.

3. Regulation 35 (3) stipulates that confidential information shall include such trade secrets, legally privileged information, financial information, information compiled for law enforcement purposes, and information about individuals, the disclosure of which would have a negative commercial impact or would result in disclosure of trade secrets or destruction or appreciable diminution of the commercial value of any information or can be reasonably expected to cause serious injury.

4. Under the present framework, if no confidentiality has been sought over the documents/information; then the same shall not be treated confidential and can be shared with opposite parties and, of course, be part of the decision of the CCI and investigation report.

5. However, once confidentiality is granted, the CCI may reject all requests for grant of inspection or for furnishing copies of such confidential documents/information.¹

6. Any party seeking confidentiality is also required to submit the non-confidential version of the documents/ information, which are required to be placed in the public files and are open for inspection. CCI or the DG, may also, on its own, grant confidentiality to certain documents/ information.

7. Under the Regulation 6 of the CCI (Lesser Penalty) Regulations, 2009 ("Lesser Penalty Regulations"), the CCI is required totreat as confidential the identity of the leniency applicant as well as the information /documents/evidence as furnished by it; unless there has been a disclosure by the applicant etc. or the Director General ("DG"), CCI deems it necessary to disclose the same.

8. However, post submission of the DG's investigation report, the confidentiality envisaged under Regulation 6 of Lesser Penalty Regulations is not available and confidentiality as granted under Regulation 35 of General Regulation survives and the remaining non-confidential information is made open to the parties for inspection.

9. Grant of confidentiality over documents and over the identity of lesser penalty applicant(s) , in India, is based on the concept that irreparable injury and harm is likely to be caused to the existence of lesser penalty applicant by the parties against whom the lesser penalty applicant(s) are coming forward with information and evidence. The nature of harm caused could include but not be limited to the disclosure of commercially sensitive data. The disclosure of such commercially sensitive data would seriously impact the (artificial) prevailing market conditions and cause serious harm to the disclosing party, who may be perceived as threat causing disruption fo artificially created market conditions.

10. However, ANY grant of confidentiality ought not to be capable of mis-use as an arm-twisting tool for hiding evidence and dragging opposite parties to conviction (in blind-fold) in gross violation of the Principles of Natural Justice and hamper the rights of other party(ies) to defend its case.

11. Regulation 35 of the General Regulations have been previously amended twice, first amendment to the provision was introduced in 2011 by way of the Competition Commission of India ("General") Amendment Regulations, 2011 (No.1 of 2011), whereby, proviso to Sub-Regulation (8) of the Regulation 35 was added to the general regulations, which provided for the CCI or the DG, granting confidential treatment to any other information or document in respect of which no specific request has been made by the party which has furnished such information or the document. The proviso, however, was completely unnecessary and does not find any mention in the present proposed amendments.

12. Furthermore, the confidentiality regulations were amended the second time in 2019 by way of the Competition Commission of India ("General") Amendment Regulations, 2019, whereby, in addition to an existing mandate to maintain confidentiality over the name of the informant under Sub-Regulation (i) of Regulation 35, a duty was imposed upon the Commission by way of proviso added to Sub-Regulation (1), to disclose the same, if need be, only after affording the informant with an opportunity of hearing.

13. The confidentiality provisions enshrined under the Competition Act and allied Regulations ought to be interpreted and applied by the CCI in such a manner that it strikes a balance between the protection of confidential information, the interest of the disclosing party and the other party's right to a fair trial and defend its case effectively. A balance so implemented will help steer clear of allegations of confirmation-bias or bias of any form towards any party (including itself).

A2. Legislative intent of Regulation 35 of the General Regulations

14. Confidentiality has always been one of the important aspects in the Indian Competition Law regime. Its importance was recognized even under the erstwhile Monopolies and Restrictive Trade Practices Act, 1969, the predecessor to the Competition Act.

15. The need for grant of confidentiality over the documents disclosed by parties to an investigation was first noted by Shri. R.C. Dutt in his Note of Dissent, in the Report of Monopolies Inquiry Commission, 1965. In his recommendations, he considered the requirement of provisions of confidentiality and noted that companies are reluctant to share certain types of information, particularly those relating to cost and processes being revealed without an assurance that such information will be kept confidential and will not reach their business competitors.²

16. It must be noted that similar to Section 57 of the Competition Act, the Section 60 of the Monopolies and Restrictive Trade Practices Act, 1969 also envisaged a restriction on the disclosure of information obtained by or on behalf of the Commission.

17. Further, the High Level Committee in the Raghavan Committee Report on Competition Policy Law, 2000, while deliberating over the need of a mechanism for Advance Ruling, noted that

18. The Raghavan Committee Report also suggests that the following must be taken into consideration to ensure a successful competition advocacy:

19. The recommendations made in Raghavan Committee Report have also been considered by the Planning Commission in its report on Competition Policy, 2007.⁵

20. Further, the Competition Law Review Committee ("CLRC"), instituted in 2019, in its report notes that

21. The CLRC also concluded that Section 57 of the Competition Act need not be amended to include a framework for passing orders for granting or rejecting requests for confidentiality as Regulation 35 of the General Regulations already sets out a detailed framework governing the confidentiality regime in this regard.⁷

22. In light of the above, it becomes clear that legislative intent behind Regulation 35 of the General Regulation has always been to ensure that the confidentiality regime is intact to protect the personal and commercial interests of the parties involved in such investigations and that there is a constant debate/ discussion around it so that, if the need be, the regulations can be periodically amended.

A3. Confidentiality under other existing (economic) legislations in India

23. Competition Law is primarily an economic law which focuses at the economic growth and development of the country. Therefore, for the purpose of addressing confidentiality, it is best understood to examine the treatment of this concept in the legislations which have their origin in the principles of economics. It is important however, to always bear in mind that violations under the Competition Act are violations in rem and not to be misunderstood/mischaracterised as 'commercial litigations' between parties, with CCI playing the role of arbiter.

24. It is well understood that confidential treatment to business/ commercial secrets of any company is one of the most critical issues under economic laws.

25. Hereinbelow, we examine the concept of 'confidentiality' as implemented and adjudicated under the Anti-dumping Rules and in Intellectual Property Rights disputes in India.

26. The Supreme Court of India, in Automotive Tyre Manufacturers Association v. The Designated Authority⁸ ("Automotive Tyres") examined the scheme of The Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment & Collection of Anti-Dumping Duty on Dumped Articles & for Determination of Injury) Rules, 1995 ("1995 Rules") in light of maintenance of confidentiality of documents in anti-dumping investigations.

27. Rule 7 of the 1995 Rules specifically addresses treatment of confidential information in customs investigations. It is provided that any information on which confidentiality is sought shall not be shared with any other party, if the designated authority is satisfied that such information is to be given confidential treatment. Further, all such information which is sought to be confidential should be accompanied by a non-confidential summary. However, if the party believes that such a summary cannot be provided then it must provide reasons to the designated authority for the same. It is pertinent to note that in the spirit of balancing the right of defence and maintenance of confidentiality of information, the 1995 Rules clearly specify that the designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation⁹, which was upheld in the Automotive Tyres case.

28. Hon'ble Supreme Court while interpreting Rule 7 of the 1995 Rules¹⁰ observed that:
    
    
    1. Confidentiality must not be assumed automatically.
    2. Once the confidentiality is claimed, the authority must satisfy itself that the information is indeed confidential, and disclosure of the said information to other parties will cause adverse effects to the party claiming confidentiality.
    3. The party seeking confidentiality is required to give meaningful non-confidential summary of such information (for consumption/ utilisation by other parties).
    4. The authority is not empowered to claim any confidentiality in respect of reasons for its finding given against a party.
    5. The DA, being a statutory investigator, cannot assume for himself the role of a party for the purpose of Rule 7 and to claim as well as accept on information to be confidential.
    6. It is one thing to use confidential information for the purpose of investigation on account of statutory provisions and not communicating the same. It is quite another, not to maintain transparent records of reasons as to why claim of confidentiality made by any party has been accepted by the DA.
    7. The authority cannot shirk from its responsibility to act fairly (in its quasi-judicial role) and refuse to indicate reasons for its findings.
    8. when two competing public interests are involved, one is to supply all relevant information to the parties concerned and the other not to disclose information which are held to be confidential, the proper course of action would be to lean in favour of the construction "that is least restrictive of individual's rights".

29. Further, Rule 17 of the Delhi High Court (Original Side) Rules, 2018 which apply to commercial suits (inter-se between parties), provide for the formation of Confidentiality Clubs. The said Delhi High Court (Original Side) Rules, 2018 also list out the broad procedure to be followed in dealing with confidential documents/ information under "ANNEXURE F CHAPTER VII RULE 17 PROTOCOL OF CONFIDENTIALITY CLUB". The Delhi High Court has laid down the above mentioned rules for the implementation of Confidentiality Clubs; however, there is still no statutory provision to give statutory rules for the constitution of Confidentiality Clubs or recognition to these clubs.

30. It would be incomplete to mention the Delhi High Court (Original Side) Rules, 2018 (related Annexure F) on implementation of 'Confidentiality Club' and not supplement by stating that the same have been fraught with challenges and problems, including courts having taken contrary views with respect to their implementation, including on the issue of membership to the confidentiality clubs. A Confidentiality Club envisaged under Rule 17 of Delhi High Court (Original Side) Rules, 2018 (related Annexure F) is therefore perceived as an agreement signed between the parties to the proceedings which helps in dissemination of confidential information and documents with a closed-user-group or authorised persons only.

31. Having said the above, it is also equally important to state that the High Court of Delhi in the case of Interdigital Technology Corporation v. Xiaomi¹¹ found that resort can be had to Rule 17 of Delhi High Court (Original Side) Rules, 2018 (and related Annexure F), only if such an arrangement is mutually agreed upon by the parties. According to High Court of Delhi, confidentiality club not founded on mutual consent of parties would be violative of the provisions of the Bar Council Rules as well as the law laid down in various previous decisions and would also be against the principles of natural justice and fair play.

32. Relying on Delhi High Court (Original Side) Rules, 2018; confidentiality over documents has been sought and granted in several intellectual property rights disputes, wherein the courts have established confidentiality clubs for sharing such documents (patents and license related information) with the external counsels and experts only¹². Applications pertaining to setting up of Confidentiality Club have also been declined in certain cases.

33. In light of all the above, it certainly appears that the jurisprudence under the Rule 7 of the 1995 Rules (applicable to anti-dumping investigations) is far more settled, compared to the Delhi High Court (Original Side) Rules, 2018. Moreover, the Rule 7 of the 1995 Rules (applicable to anti-dumping investigations) is a similar regime and similar nature of legislation; as compared to the Delhi High Court (Original Side) Rules, 2018 which are meant to be applicable to commercial suits between parties for commercial disputes.

A4. Concept of Confidentiality in International Jurisdiction

A4.1 The European Union

34. The European Commission ("EC") has a general duty to protect confidential information under the Treaty on the functioning of the European Union ("TFEU").¹³

35. However, in terms of the Regulation relating to the conduct of proceedings by the EC, confidential information has been disclosed to prove the infringement by an enterprise or to safeguard the right of defence of the parties to an investigation.¹⁴ The EU Framework seeks to restrict access to 'business secrets' and 'other confidential information'. Business secrets have been defined as that information of which not only disclosure to the public but also mere transmission to a person other than the one that provided the information may seriously harm the latter's interests.¹⁵ Other confidential information has been broadly defined as information other than business secrets, insofar as its disclosure would significantly harm a person or undertaking.¹⁶ Information which warrants grant of confidentiality within the EU Framework has been succinctly described by Court of First Instance¹⁷ in the following terms:

(Emphasis Supplied)

36. The General Court (Third Chamber)¹⁸ has also observed that as a general rule, five years would be considered as a sufficient period of time for a particular information to lose its confidential character. The Court observed:

37. It was held in Akzo Nobel NV and Others v. European Commission, that for the information to fall within the ambit of the obligation of professional secrecy, it is necessary, first of all, that it be known only to a limited number of persons. It must then be information whose disclosure is liable to cause serious harm to the person who has provided it or to third parties. Finally, the interests liable to be harmed by disclosure must, objectively, be worthy of protection. The assessment as to the confidentiality of a piece of information thus requires the legitimate interests opposing disclosure of the information to be weighed against the public interest that the activities of the EU institutions take place as openly as possible.

38. Furthermore, THE GENERAL COURT (Third Chamber) in Pilkington Group Ltd, vs. European Commission, while Rejecting the a request for confidential treatment of data allegedly covered by business secrecy held that information which was secret and confidential but is five or more years old and must, accordingly, be regarded as historical, does not remain either secret or confidential unless, exceptionally, the party concerned demonstrates that, despite its age, that information continues to constitute an essential element of its commercial position or that of the third party concerned. However, it went on to clarify that information which is in principle historical may be deemed to be confidential if it still constitutes an essential element of the commercial position of the applicant for confidentiality or that of the third party concerned.

39. Further, confidential information has also been granted protection by the institution of confidentiality rings. Confidentiality rings are a form of negotiated disclosure, set out to safeguard the rights of defence while respecting the legitimate interests of information providers. Under the European Union ("EU") framework, it is the DG Competition who has the discretion to decide whether the formation of a confidentiality ring is appropriate, either suo-moto or on a request made in this regard by the parties. The EU framework permits any party requiring access to confidential or commercially sensitive information to negotiate with the party which submits such information to the antitrust authority so as to determine the persons/ individuals who should be a part of or constitute the confidentiality ring. Adoption of this methodology or procedure is likely to ensure minimal disputes and litigation between the parties.

40. For facilitating the creation of a confidentiality ring, the DG Competition grants his consent by proposing a suitable draft of the negotiated disclosure agreement, which is to be entered into by members of the confidentiality ring. It must be noted that the information providers as well as the external counsels of the parties are made a party to such confidentiality rings. The EC has also come out with standard templates for negotiated disclosures to facilitate negotiations between the parties. Further, the EU framework also had the foresight to guard the Commission from any potential liability in case of disclosure of confidential information. The parties by signing the negotiated disclosure agreement agree that in case of a breach of the negotiated disclosure agreement by a member of the confidentiality ring, the European Commission cannot be held liable under TFEU for any unauthorised disclosure by the members of the confidentiality ring. Additionally, the negotiated disclosure agreement also contains a provision for the destruction of the documents included in the confidentiality ring after a certain time limit.

41. Furthermore, in case of violation of the terms of the negotiated disclosure agreement by an external counsel, the EC may report the incident to the bar association of the lawyer concerned with a view to disciplinary action. So far, under the EU framework, the DG Competition has used two types of confidentiality rings:¹⁹
    
    
    • A confidentiality ring whereby the external counsel selects from the documents included in the ring only those documents that are considered potentially exculpatory. For these documents a non-confidential version is prepared by the information provider that can be shared with the other parties.
    • A confidentiality ring whereby the external counsel of the parties under investigation selects from the documents included in the ring those documents that are considered potentially exculpatory but no non-confidential versions are prepared of these documents. In this case, special arrangements will be sought to protect the confidential nature of the information from disclosure to the parties under investigation or in further proceedings. An optional clause may provide a possibility for the external counsel to apply for client access for some of the information if required by the rights of defence.

42. Moreover, the EC has also introduced an online whistle blower tool to enable informants to alert the EC about past, ongoing or planned cartels and other antitrust infringements while maintaining their anonymity.²⁰ The tool is specifically designed to protect informants' identity through an encrypted messaging system.

43. It must be noted that the framework envisaged under the EU laws takes into account the impact of disclosure of confidential information to competitors and the disclosure of identity of an informant while striking a balance vis-a-vis the significance of a party's right to defend itself.

A4.2 South Africa

44. The Competition regulation in South Africa boasts of a robust and balanced confidentiality regime. Under the Competition Act of South Africa²¹ ("Competition Act SA"), confidentiality is one of the first subjects on the investigation powers of the authority. Maintenance of confidentiality of business-wise critical and sensitive information is of paramount importance and the same is duly captured within the law. It is also pertinent to note that while the law makes provisions to afford protection to such information, regulated access to such information is also given due importance.

45. At the first instance, any party claiming confidentiality over information/documents is required to identify such information as 'confidential' and submit a written statement in a specified format explaining why such information is claimed to be confidential.²² Until any final determination regarding the confidentiality of information is made, the commission is bound to afford it the protection of confidentiality. The Competition Act SA, also specifies the procedure for the grant of confidential status to information by providing specific timelines, notice requirements and appeal provisions.²³

46. Access to confidential information is also provided for under the Competition Act SA. Under the relevant provisions, the commission may ask the competition tribunal for a ruling on whether the information so designated meets the statutory requirements, and if so, approach the tribunal for an order seeking access to such information²⁴. Other persons/parties also have the right to apply to the competition tribunal for access to confidential documents/information, subject to an appropriate order, and they may also appeal an order denying access to the confidential information²⁵. It is also pertinent to mention that the parties may also seek to gain access to documents, which are protected under the confidentiality provisions of the Competition Act SA through the application of civil procedure discovery rules.

47. In the case of Arcelormittal v. Competition Commission and Others²⁶, the Court dealt with a request for documentation in terms of Uniform Rules of Court²⁷, where the competition commission alleged that the record was subject to confidentiality, and the matter was remitted to the competition tribunal to determine the confidentiality of the matter. The court held that access to the documents was allowed in terms of the Uniform Rules as the affidavit made reference to the document, which Arcelormittal was allowed to request. In this and several other cases, the parties have sought to use not only the provisions of the Competition Act SA but also such civil provisions.

A4.3 United States of America

48. The Federal Trade Commission treats as confidential, the documents/information obtained pursuant to the compulsory process under the Federal Trade Commission Act.²⁸

49. Further, the Department of Justice or Federal Trade Commission ("FTC") are prohibited from sharing any confidential information in relation to investigations of notified mergers.²⁹ Information/documents shared by any party may also be treated as confidential if such information has been requested to be kept confidential by the party disclosing it and are otherwise not required to be disclosed.

50. The FTC may disclose documents marked as confidential by the disclosing party if it is of the view that such information is not a trade secret or commercial or financial information and is not privileged or confidential. In such a case, the FTC shall inform the disclosing party of its intention to disclose information flagged as confidential by the disclosing party, at least 10 days prior to the date of disclosure, to enable such party to approach the relevant court/authority for seeking a restriction on the disclosure of such information.

51. During the pendency of the application seeking a stay on disclosure of confidential information, the FTC shall not disclose such information until the court has ruled on the application.

A4.4 Singapore

52. Within the competition regime of Singapore, the Competition Regulations, 2007 (Competition Regulation 2007) and competition act of Singapore (Competition Act, Singapore) provide detailed rules and provisions for the grant of confidentiality, submission and access of confidential information in antitrust investigations. Regulation 2 of the Competition Regulations 2007, define confidential information to include:
    
    
    • Commercial information the disclosure of which would, or might, in the opinion of Competition and Consumer Commission of Singapore ("CCCS"), significantly harm the legitimate business interests of the undertaking to which it relates;
    • Information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm the individual's interest; or
    • Information the disclosure of which would be contrary to public interest.

53. Under the Competition Act of Singapore, the grant of confidentiality is a discretionary function of the CCCS, however CCCS has a duty to preserve secrecy.³⁰

54. The party seeking confidentiality must supply CCCS with such information accompanied by a written statement explaining the grounds on which confidentiality is being sought.³¹ Once confidentiality is granted, such information would only feature in the case records in a redacted format. Access to such files is decided on a case by case basis. However, Regulation 8(2) ensures that the parties are given a 'reasonable opportunity' to inspect the documents, which takes into account the number of pages in the case file and the time taken to inspect them, etc.

55. In the context of maintenance of rights of defence of the parties, Singapore competition regime envisages a balanced system for disclosure of confidential information.

A5. Judicial Interpretation of the Confidentiality Provisions in India

56. Concerns relating to provision and treatment of confidential information, under Competition regime in India, have been raised time and again. Primarily, confidentiality can be bifurcated in two heads: (i) confidentiality of the identity of informants and (ii) confidentiality of documents and information submitted by parties.

57. Based on the judicial pronouncements on confidentiality and the treatment of confidential /inter-alia commercially sensitive information under the Competition Act, we examine the concepts and the existing jurisprudence on confidentiality within the Indian Competition law regime.

A5.1 Confidentiality of Informant's Identity

58. Regulation 35(1) of the CCI General Regulations provides for confidentiality of the name/identity of the informant. Under the present framework, the CCI shall grant confidentiality over an informant's identity if an application has been made in this regard.

59. In Samir Agarwal v. CCI ³², the National Company Law Appellate Tribunal ("NCLAT"), while dealing with the issue of locus standi, held that Information under the Competition Act may only be filed by a person who has "suffered invasion of his legal rights" either, "as a consumer or beneficiary of healthy competitive practices", which would require the identity of the informant to be disclosed. Upon appeal, the Apex Court, overruling the judgement of NCLAT, held that the Competition Act vests powers in the CCI and enables it to act in rem i.e., in public interest, and therefore the understanding of the term "person aggrieved" must, in the context of the Competition Act, be understood widely and not be construed narrowly.

60. In XYZ v. Alphabet Inc. and Ors. ³³, wherein Google requested the CCI to disclose the identity of the informant, the CCI was of the view that if Google's argument is to be accepted, CCI would never be able to initiate an investigation based on information received through its Anonymous Module, or suo moto, based on evidence it sees in the public domain. Furthermore, it was noted that the informant meets the criteria of 'any person' under section 19(1) of the Act and on these grounds, the identity of the informant was preserved.

61. In Phase Power Technologies Private Limited v. ABB India Limited ³⁴ it was held that the disclosure of the identity of such vendors/customers may affect the business relationship between them and the opposite party, and may adversely affect their livelihood. Cross examination of those witnesses was also not allowed even though the plea of effective cross-examination was raised.

62. In view of these decisions, the stance of the CCI in this regard, seems to be constant so far as the CCI has time and again maintained confidentiality over an informant's identity due to the likelihood of potential harassment of the informant by its competitors/other parties.

A5.2 Confidentiality of documents

63. In Forech India Ltd. vs CCI and Anr. ³⁵, the CCI gave an express consent before the Hon'ble Delhi High Court:
    1. to furnish to the petitioner (Forech) all the documents of investigation available with the respondents save those with respect to which any party has claimed confidentiality;
    2. to give an opportunity to the petitioner to cross-examine any witness whose oral statement pertaining to the petitioner has been recorded;
    3. to give to the petitioner an opportunity to make a further statement after copies of the documents have been given to the petitioner and after the official of the petitioner has been confronted with some of the documents;
    4. to give to the petitioner the orders passed on the application of any other person claiming confidentiality with respect to any document / material.

64. The CCI later preferred an application ³⁶ before the Hon'ble Delhi High Court with a prayer to supply only those documents which are to be relied upon by the CCI against the petitioner (Forech) instead of 'all the documents of investigation available with the CCI, save those with respect to which any party has claimed confidentiality". However, the Hon'ble Delhi High Court rejected this prayer and directed the CCI to provide all documents to the petitioner, whether relied upon by the CCI or not. However, in so far as the 'orders passed on the application of any other person claiming confidentiality with respect to any document / material' were concerned, the Hon'ble Court allowed CCI to redact from such orders those portions which may disclose the nature of the documents / material in terms of General Regulations and Lesser Penalty Regulations, 2009. The aforesaid order was confirmed by the Division Bench of Hon'ble Delhi High Court ³⁷ as well as the Hon'ble Supreme Court. ³⁸ However, it may be pertinent to mention that the case involved providing access on the basis of consent given by the CCI and without constituting a binding precedent.

65. CCI in Suo-moto Case No. 4/2016 [In re: Cartelisation in tender no. 59 of 2014 of Pune Municipal Corporation for Solid Waste Processing] observed that:

66. The High Court of Delhi in the case of NTN Corp. v. CCI ³⁹ held that all material particulars as to the allegations, which are necessary for the parties to meet the case set out against them must be disclosed.

67. In Lafarge India Ltd. v. CCI and Ors. ⁴⁰, a case pertaining to cartel wherein the information was price sensitive having financial value, the Hon'ble COMPAT noted that the disclosure was necessary as there was need to show by comparison of pricing data the cartelization among the parties, which would otherwise make it impossible for the parties to defend themselves.

68. Further, in TPM Consultants v. CCI ⁴¹, it was held that the data on which confidentiality was claimed was not confidential in nature. However, in In Re: Alleged Cartelisation by two bidders / firms in procurement / tender for purchase of surgical disposal items on two year contract basis by AIIMS ⁴², confidentiality was granted on mailbox containing ITR returns.

69. Further, In Oriental Rubber Industries Pvt. Ltd. v. Competition Commission of India (W.P. (C) 11411/2015, dated 11.2.2015), the CCI stated that they are willing to provide copies of the confidential documents to be used against the petitioners.

70. It must be noted that the Proposed Amendment introduces the concept of Confidentiality rings under the Competition Act to regulate the dispensation of confidential information amongst parties in a manner that is not prejudicial to the information provider or the other parties' right to defence. In this context, it must be pointed out that in In Re: NSK Ltd. and Ors. ⁴³, back in 2014, the CCI upon mutual agreement of the parties had allowed for the formation of a confidentiality ring to disclose the confidential information.

71. Therefore, it is clear that the protection of confidential information, while ensuring that the right of defense and fair trial is afforded to the other parties, has always been of utmost importance under the Indian jurisprudence.

72. It is also pertinent to mention that in all the writ petitions filed by parties before various High Courts, the core issue was access to public files especially inspection of non-confidential files. The Court's have on prima facie basis held that entire file cannot be claimed to be confidential. However, the Courts have been watchful of the fact that no confidential information/ data is supplied to any party, which causes prejudice to other party (which has supplied such data/ information).

73. It is also pertinent to mention that the CLRC Report and the draft Competition Amendment Bill, 2020 did not recommend/ suggest any amendments to the confidentiality regulations. In fact, the CLRC Report stated that the no amendments are required in the confidentiality regulations under Regulation 35 of the General Regulations. It shall be pertinent to understand as to what prompted issuance of these Proposed Amendments.

74. The extant confidentiality regulations under Regulation 35 of the General Regulations are exhaustive and provide for detailed mechanism of seeking/ grant of confidentiality by the DG as well as by the CCI. It also provides for adequate mechanism for filing an appeal against any decision of the DG with respect to (non-)grant of confidentiality.

75. In any event, the DG and the CCI are required and duty bound to pass orders granting confidentiality and seek copies of submissions/ replies in confidential and non-confidential versions. The non-confidential version is then required to be made available for inspection under Regulations 35 and/ or 50 of the General Regulations. The only matter of debate at this stage is whether the orders granting confidentiality under Regulation 35 (after redacting the confidential portions) are also to be made available for inspection.

76. Even though, Forech case is not to be treated as a precedence, but the CCI, itself offered/ consented to provide copies of confidentiality orders (after redacting the confidential version) to Forech (subsequently confirmed by the Supreme Court).

77. It has been generally observed that the parties are more concerned about availability of non-confidential documents for inspection as well as availability of orders granting confidentiality. This is to balance the rights of defence.

78. Further, the extant provisions of the Competition Act specifically direct the DG to submit the investigation report along with all the evidence, statements, documents, analysis. Regulation 20(4) of the General Regulations also states that the said report may be submitted in two parts - confidential and non-confidential. It may be analyzed that the extant provisions do not allow filing of non-confidential version of the report only after getting due approval of the CCI on the confidential version of the Report.

79. The grant of confidentiality, in any event, cannot be merely mechanical and shall always require application of mind and analysis of each case on case-to-case basis (ad-hoc basis).

80. While it cannot be denied that the investigations are time-bound; however, it is also important to understand that to accord a fair hearing and access to documents - as per established procedure under the Competition Act - is a non-negotiable ask.

B. OBSERVATIONS ON THE PROPOSED AMENDMENTS

B1 Cover Note to Proposed Amendments

81. The relevant portions of the cover note are extracted below:
    
    
    1. In the last over 10 years of enforcement experience, it has been observed that in terms of the present dispensation for seeking confidentiality, parties file their submissions [before the Director General (DG) or the Commission] in confidential and non-confidential versions along with an application seeking confidentiality. This necessitates a clause by clause disposal of such confidentiality claims by the Commission or by the DG. Further, in case such submissions and applications are filed before the DG, the aggrieved party may file an appeal before the Commission challenging the order of the DG declining confidentiality. This again requires a clause by clause examination of such claims in appeal by the Commission.
    2. 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 thereof by the Office of the DG/ Commission. Only thereafter, the DG prepares and submits non-confidential version of the investigation report, after receiving the revised submissions from the parties in light of the order of the Commission in appeal. This further delays the inquiry considerably.
    3. Many such cases result in litigation putting the investigation/ inquiry in limbo defeating the very purpose of correcting the markets in a swift manner. As the markets are dynamic, any delay in concluding the process defeats the purpose of anti-trust investigations.
    4. Besides, the present practice and procedure are highly onerous and unsatisfactory not only for the parties but also for the regulator. This has caused unnecessary litigation and delays in concluding the inquiry.
    5. It is proposed that the parties would submit their confidential as well as non-confidential versions of their filings 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 in this regard. This would obviate the need for determination of confidentiality claims and the consequent appeals arising therefrom and would result in swifter disposal of inquiries.

B2 Confidentiality Over Identity of Informant

82. Sub-Regulation 1 to Regulation 35 pertains to the grant of confidentiality over an informant's identity. Under the present framework, Sub-Regulation 1 stipulates that the CCI shall maintain confidentiality over an informant's identity, in appropriate cases, where a request has been made in this regard, in writing.

83. Proposed Sub-Regulation 1 substitutes the word "shall" with "may", granting the CCI a discretion to decide upon the grant of confidentiality over an informant's identity. Further, the Proposed Amendment also takes away the procedure/manner in which an informant shall approach the CCI seeking confidentiality over its identity.

84. Furthermore, the proviso to proposed Sub-Regulation 1, prescribes that the CCI shall, for the purposes of the Competition Act, revoke the confidentiality granted to an informant's identity after recording reasons in writing.

85. Text of proposed Sub-Regulation 1:

AnantLaw's Recommendations:

86. The proposed Sub-Regulation 1 grants the CCI with a discretion to reject or allow the claims of informants seeking confidentiality over their identity. The same is based on the rationale that the CCI shall only grant confidentiality over an informant's identity, in cases it deems necessary and expedient, and not merely on the receipt of an application in this regard.

87. It must be noted that an informant's identity is considered commercially sensitive in nature, especially wherein the informant proceeds to approach the CCI against its competitors or suppliers (upstream and downstream). The disclosure of the informant's identity may jeopardize its safety, adversely impact its business and may also lead to prejudicial treatment by parties against whom the information would be filed. The CCI, itself (in the past), has refused to disclose the identity of informant on the same ground.

88. Further, the proposed Sub-Regulation 1, facilitates the revocation as well as non-grant of confidentiality over an informant's identity, which is in stark contrast to the confidentiality afforded under the Lesser Penalty Regulations. Under Regulation 6 of the Lesser Penalty Regulations, confidentiality over the identity of the applicant/information provider is maintained even after the submission of the DG report. The proposed regulation (1) would therefore come in clear conflict with the confidentiality regulation under the Lesser Penalty Regulations. As mentioned in previous paragraphs, the CCI has itself stated that "The confidential treatment granted under Lesser Penalty Regulations does not extend to evidence obtained or collected by the DG, even if such an evidence is obtained from a Lesser Penalty Applicant." Further, under Regulation 5 of the Lesser Penalty Regulation, it is provided that if the proposes to withdraw the leniency status, it shall provide a hearing to the party concerned.

89. In light of the above, it is recommended that the CCI must, in all circumstances, allow the informant's request of confidentiality over its identity. This is absolutely vital as once the Information is filed with the CCI, there is no provision under the Competition Act for the informant to withdraw the information filed by it on account of non-grant of confidentiality over its identity. Further, non-grant of confidentiality over an informant's identity, especially in cartel cases, shall dissuade informants from approaching the CCI. In case, CCI decides to disclose the name of the informant and not keep it confidential, the informant should be provided with an option to withdraw its name from the information, so filed; and the CCI may then take-up the matter on a "suo-moto" basis.

90. Further, the proposed amendment to Sub-Regulation 1 does not entail the manner in which an informant may approach the Commission seeking grant of confidentiality over identity. The Proposed Amendment specifically omits the phrase "on a request made to it in writing", which is part of the present framework under Regulation 35. In the interest of clarity, it is recommended that the proposed Sub-Regulation 1 stipulate a procedure for approaching the Commission for grant of confidentiality over identity.

91. Furthermore, the proviso to proposed Sub-Regulation 1 is against the principles of natural justice. Under the present framework, the CCI is bound to afford the informant with an opportunity of being heard before disclosing its identity. However, the proviso to the proposed Sub-Regulation 1 merely stipulates that the CCI may revoke the protection granted after recording its reasons in writing; informant does not get the opportunity to be heard or present its case.

92. The opportunity of being heard is an important facet of passing a well-reasoned order and is also one of the twin ingredients of the principles of natural justice. This has been recognized by the Hon'ble Supreme Court in Competition Commission of India v. Steel Authority of India Ltd. ⁴⁴, wherein it has been held that:

93. Further, in S.N. Mukherjee v. Union of India ⁴⁵, the Hon'ble Supreme Court has laid down that:

"The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind."

94. The CCI is also bound by the principles of natural justice in regulating its own procedure under Section 36 of the Competition Act. Even within the EU Framework, if the European Commission intends to disclose information which the information provider considers confidential, DG Competition must inform the information provider of the reasons for that intention and invite the information provider's comments.

95. In view of the above, an order passed by the CCI revoking the confidentiality granted over an informant's identity shall adversely impact the rights and business interests of the informant. The CCI, as a quasi-judicial body, is required to ensure that its act should not prejudice anyone.

96. Hence, it is imperative that the informant is provided with an opportunity of being heard. Denial of an opportunity of being heard, prior to passing an order adversely affecting the informant, tantamount to the violation of the principles of natural justice. Such orders may also lead to numerous litigation, defeating the very object of conducting timely investigation by the CCI.

97. As mentioned above, in terms of Lesser Penalty Regulations, under Regulation 5 therein, the CCI prior to rejecting the application of the leniency applicant, is mandated to provide a hearing to such applicant.

98. It is recommended that the CCI grant the informant with an opportunity of being heard and to present its case, before an order, revoking the confidentiality granted over the informant's identity, is passed.

99. Furthermore, it must be noted that the order revoking confidentiality over the informant's identity is a non-appealable order under Section 53A of the Competition Act. It is therefore recommended that orders revoking the confidentiality granted to an informant's identity should be made appealable before the Hon'ble National Company Law Appellate Tribunal under Section 53A of the Competition Act.

100. Key Suggestions:
     
     
     • It is imperative that, as a standard practice, the CCI maintains confidentiality over an informant's identity. It is therefore suggested that the CCI considers substituting the term "may" used in the proposed Sub-Regulation 1 with "shall".`
     • To ensure due process, the proposed Sub-Regulation 1 should recommend the manner and the procedure by which an informant may approach the CCI seeking confidentiality over its identity.
     • In terms of the proviso to proposed Sub-Regulation 1, an informant ought to be granted with an opportunity of being heard prior to passing an order revoking the confidentiality granted to the informant's identity.
     • The CCI may consider making an order passed under sub-regulation 1 of the Proposed Amendment (revoking the confidentiality granted to an informant's identity) appealable under Section 53A of the Competition Act.

B4 Confidentiality Over Documents Filed by Parties

101. The proposed Sub-Regulations 2-5 stipulate the process of seeking confidentiality over the documents filed by the Parties on the basis of self-certification. Sub-Regulation 2 casts an obligation on parties seeking confidentiality to set out cogent reasons for such treatment. Further, it mandates that the party shall self-certify the extent to which information on which confidentiality is sought is known to outside public, or suppliers, distributors etc., the measures taken by the party to guard secrecy, and the ease/ difficulty with which the information could be acquired or duplicated by others. These factors are presently mentioned in Regulation 35(9) of the prevailing General Regulations, 2009. Further, the proviso to Sub-Regulation 2 envisages some adjudicatory acts on part of CCI/ DG to ascertain whether the non-confidential version filed by the parties is in accord with the undertakings furnished in this regard.

102. Text of proposed Sub-Regulation 2:

103. The proposed Sub-Regulation 5 prescribes that all or any document, over which a party has claimed confidentiality, shall be segregated from the public record and secured separately in a sealed envelope.

104. Further, as per the proposed Sub-Regulation 6, the CCI may set up confidentiality rings to provide selected authorised personnel of the parties with unredacted versions of the confidential documents.

105. Text of proposed Sub-Regulation 5:

106. Text of proposed Sub-Regulation 6:

107. It is noted that the procedure for preparing sets and filing of the same in confidential and non-confidential version remains the same under the Proposed Amendments.

108. Under the extant Regulation 35, a party seeking confidentiality over the documents filed shall make a request in this regard with the Commission/ DG office. Subsequently, the Commission/ DG office may or may not grant confidentiality over the documents/information filed by such parties.

109. The procedure set out in the proposed Sub-Regulations 2-5 have completely done away with the adjudication process of the CCI in dealing with confidentiality applications. The CCI intends to proceed solely on the basis of the self-certification filed by the parties. The proposed Sub-Regulation 5 provides that all documents and information over which any party has claimed confidentiality shall be marked as confidential and stored separately in a sealed envelope.

AnantLaw's Recommendations:

110. In light of the above, it is recommended that the CCI must not do away with the adjudication of confidentiality applications entirely. Merely "claiming" confidentiality over documents cannot lead to grant of confidential treatment to such documents. Providing umbrella confidentiality over the claims submitted by a party is arbitrary and is completely detrimental to the other parties' right of defence.

111. That in order to avoid such umbrella claims, the CCI/ DG should first adjudicate upon the claim of confidentiality at a stage when a request for confidentiality has been moved by the parties. By merely introducing a provision for self-certification, CCI/DG is trying to abdicate its role/ duty in investigation and shift onus onto the parties.

112. Further, if the CCI intends to provide such umbrella confidentiality over documents solely on self-certification basis, without adjudicating upon the claims of the party seeking confidentiality, then the Confidentiality Rings stipulated under the proposed Sub-Regulation 6 would have to be mandatorily set up in each and every case. The CCI cannot grant blanket confidentiality on one hand and make the setting up of Confidentiality Ring discretionary on the other. Furthermore, any rejection of a request for constitution of confidentiality ring is likely to be challenged and will become subject matter of litigation as a party's right to defend would be gravely prejudiced if confidentiality is granted without due 'application of mind' merely on the basis of self-certification.

113. Therefore, grant of blanket confidentiality and rejection of constitution of confidentiality ring will increase litigations and cause further delays, defeating the purpose for which the regulations are proposed to be introduced i.e. reducing litigation and correcting the markets in a swift manner.

114. In order to adequately defend one's case, each party is entitled to the documents submitted against it. The pending/ ongoing/ past litigations on the issue of confidentiality have largely been with respect to the cases, where the CCI has refused inspection of public files/ non-confidential files - by stating that the entire case is confidential. Also, most of these cases have some connection with Lesser Penalty Regulations. The CCI is now required to introspect and understand the faults in its own implementation and interpretation of the extant Regulation 35. As a practice, the CCI has routine disallowed inspection of orders granting confidentiality. In order to avoid any further litigation relating to Regulation 35, it is highly advisable that the orders granting confidentiality are placed for inspection and non-confidential/ public versions of the files in all cases are made available for inspection.

115. Key Suggestions:
     
     
     • The CCI and DG should continue adjudicate upon the claims of a party seeking confidentiality over the documents and not grant blanket confidentiality solely on a self-certification basis.
     • In the case that blanket confidentiality is provided on a self-certification basis, the CCI might consider amending the term "may" used in the proposed Sub-Regulation 6 with "shall" to ensure that all the parties have an equal right of defence, by being privy to the confidential documents submitted against it.

B5 Setting Up Of Confidentiality Ring

116. The proposed Sub-Regulation 6 stipulates that the Commission may set up Confidentiality Rings comprising of authorised representatives of the parties to an investigation. The rationale behind setting up of Confidentiality Rings is to enable all the parties to have access to unredacted versions of the relevant documents, at the same time, in terms of Regulation 37 of the General Regulations.

117. The Commission may set up similar Confidentiality Rings at the level of the DG office as well if access to unredacted data is required to be given to the parties concerned for the purposes of investigation.

118. Furthermore, under the proposed Sub-Regulation 11, the informant is specifically barred from becoming a part of the Confidentiality Ring and shall have access to non-confidential records only.

119. The proposed regulations also does not expressly include advocates as a part of the confidentiality ring. In terms of the current practice, the legal representatives/ advocates are not allowed to accompany parties/ witness, while recording of statements before the DG and they are made to sit in a separate room. This is to ensure that the advocates do not listen to the questions as asked by the DG and answers as given by the parties. However, as part of the confidential ring, the advocates should not be denied access to such statements. Accordingly, it is advisable that the same is clarified in the Proposed Regulations.

120. Text of proposed Sub-Regulation 11:

AnantLaw's Recommendations

121. The formation of Confidentiality Rings for sharing confidential information is not a new concept. The concept of formation of Confidentiality Ring/ Confidentiality club has been adopted in India in cases pertaining to intellectual property rights and trade secrets. Rule 17 of the Original Side Rules provides for the formation of such Confidentiality Clubs. Further, Confidentiality Rings have been set up in India, previously, in Re: NSK Ltd. and Ors. (Supra) and Telefonktiebolaget Lm Ericsson (Supra).

122. Furthermore, the formation of Confidentiality Rings are in fact in line with the practice followed by mature anti-trust jurisdictions, such as the European Union, which has been using Confidentiality Rings as a means of providing access to confidential data. However, the European Union's guidance note titled 'The use of confidentiality rings in antitrust access to file proceedings' provide a greater clarity on issues relating to formation of confidentiality ring when compared with the proposed regulations. EC's guidance note states that DG Competition may decide to propose a confidentiality ring, either on its own motion or upon receipt of a request from the parties. Therefore, in the European Union, the parties may make a formal request for constitution of a confidentiality ring. However, the proposed regulations are silent on the aspect of whether the concerned parties can make a request for constituting a confidentiality ring or does CCI envisage formation of confidentiality ring only on a suo-moto basis.

123. Furthermore, the proposed sub-regulation is also silent on whether a party to the proceedings before the CCI can oppose the setting up of a confidentiality ring or not. It is only natural that a party which has submitted commercially sensitive information may have a reasonable apprehension as to the setting up of confidentiality ring or disclosure of such information with some specific members thereof. In such cases, disclosure of commercially sensitive information without the consent of such party is likely to adversely impact its rights and therefore, it is imperative that such party is afforded the opportunity of hearing or of filing objections to the formation of confidentiality ring, before disclosure of such commercially sensitive information is undertaken on the basis of Sub-Regulation 6.

124. Additionally, it is also pertinent to point out that the European Union law on confidentiality rings does not differentiate between the informant and the other parties. ⁴⁶ It must be noted that the information provider/informant is very much a part of the confidentiality rings in European Union. Contrary to the framework of the European Union, the proposed Sub-Regulation, does not include the confidential information provider as a part of the Confidentiality Ring. It must be noted that the information provider has the right to be informed about the disclosure of the confidential information provided by it. The disclosure of such information may seriously prejudice the interest of the confidential information provider and therefore, it is vital that the confidential information provider be given an opportunity of putting forth its objection to the formation of a Confidentiality Ring, by way of a hearing.

125. Furthermore, under proposed Sub-Regulation 11, an informant is barred from becoming a part of the Confidentiality Ring. The proviso to the proposed Sub-Regulation 11 stipulates that the CCI has the discretion to make the informant a party to the Confidentiality Ring.

126. It is pertinent to point out that an informant has an important role to play during the course of the investigation being undertaken by the DG and the CCI. The informant is also treated at par with the opposite parties to an investigation, in providing comments and objections to the DG report. Non-grant of similar right to be part of the confidentiality ring to the informant shall be in violation of principles of natural justice. Therefore, it is recommended that the informant must be a part of the Confidentiality Ring.

127. In addition to above, it is also recommended that the Commission set forth strict procedures/guidelines/protocol to be followed by the parties to the Confidentiality Ring.

128. In view of the above, it is further recommended that:
     
     
     1. Advocates/ legal practitioners/ external legal counsels to be expressly made a part of the confidentiality ring.
     2. A detailed procedure/ protocol must be formulated for maintaining the confidential records available with the CCI.
     3. The number of times and the duration for inspection to be conducted by the members of the Confidentiality Ring must be prescribed.
     4. A cap on the maximum number of persons from each concerned enterprise that may become a part of the Confidentiality Ring must be put in place.
     5. Clarity must be provided on the manner in which the Confidential Rings would operate. For example:
        
        
        1. Would the Confidentiality Ring automatically cease to exist upon culmination of the proceedings or would the CCI need to pass an order in this regard?
        2. In cases wherein a Confidentiality Ring has been formed, should the objection/ suggestions to the DG report be filed in two versions i.e., confidential and non-confidential?
        3. Would the objections to the information obtained from the Confidentiality Ring be circulated only to the members of the confidentiality ring?

129. Key Suggestions:
     
     
     • The CCI may consider making every confidential information provider and informant a part of the Confidentiality Ring.
     • The CCI may, furthermore, consider expressly making advocates a part of the Confidentiality Ring.
     • The proposed Sub-Regulation 11 should be struck off as it is imperative that the Informant forms part of the Confidentiality Ring.
     • To ensure due process, the Proposed Amendment should be accompanied with a detailed procedure on the working and conduct of the parties in a Confidentiality Ring.

B6 Filing Of Compliance Affidavit Post Culmination Of Proceedings

130. The proposed Sub-Regulation 7 stipulates that the access to records, under the Confidentiality Rings, shall only be provided after the filing of an undertaking by the members stating that the confidential documents so disclosed shall not be shared with any third party, whatsoever. Further, the members of the Confidentiality Ring shall use and store the confidential information disclosed solely for the purposes of the ongoing proceedings.

131. Text of proposed Sub-Regulation 7:

AnantLaw's Recommendations:

132. To ensure a proper and timely compliance by the parties in this regard, it is recommended that the parties to the Confidentiality Ring submit a compliance affidavit, attesting that the information and documents so received by way of the Confidentiality Ring, has been destroyed. Such an affidavit must be filed with the CCI by all the parties within a period of 30 days from the culmination of the proceedings.

133. The filing of compliance affidavits post culmination of proceedings will ensure compliance of the obligation to destroy documents as required by the proposed Sub-Regulation 7 and at the same time, inspire confidence of the information providers thereby enabling them to approach the CCI without any fear of disclosure of confidential information after the proceedings before the CCI/ DG are concluded or at any other stage thereafter.

134. Key Suggestions:
     
     
     • A Compliance Affidavit should be filed by all the parties, in receipt of confidential data by virtue of the Confidentiality Rings formed under the Proposed Amendment, within a period of 30 days from the date of culmination of the proceedings.

B7 Obligations Of Members Of The Confidentiality Ring

135. The CCI has addressed, within the Proposed Amendment, the obligations and undertaking of the members of the confidentiality ring in Sub-Regulations 7, 8, and 9.

136. The Proposed Sub-Regulation 8 provides that internal representatives of the enterprise within the confidentiality ring shall be from commercially non-operational streams of the enterprise. This has been proposed on the rationale that the commercially sensitive information, which is disclosed in entirety to the members of the confidentiality ring must be kept from those members who are actively involved in commercial functions and may be able to misuse the information so provided to them and defeat the purpose of confidentiality of the information/documents.

137. Text of Proposed Sub-Regulation 8:

AnantLaw's Recommendations:

138. It is recommended that the process and consequences of removal or resignation of members forming part of the Confidentiality Ring is also addressed in the proposed Sub-Regulation 8. In the event any member of the Confidentiality Ring (who is an internal member of the enterprise) resigns, retires, gets transferred or is removed from the employment, it should be the duty of such concerned enterprise to intimate the same to the CCI or DG office in writing and a fresh affidavit should be filed by the replacement member becoming a part of the confidentially ring.

139. The Proposed Amendment should also provide for the consequences of contravention of the aforementioned obligation of enterprises.

140. Key Suggestions:
     
     
     • Sub-Regulation 8 should include process of replacement of members in the confidentiality ring in a manner which secures the confidentiality of information and documents which are provided to the members of the confidentiality ring.
     • Sub-Regulation 8 should also provide for the consequences of contravention of the obligation by enterprise(s).

B8 Penalty And Compensation Pertaining To Breach Of Confidentiality

141. The Proposed Regulation 35 addresses one of the most critical aspects of competition regulation in India. Maintaining confidentiality of information and documents in addition to the confidentiality over the identity of informants is paramount. Proposed Sub-Regulation 9 makes the members of confidentiality ring liable for penal action in the event of contravention.

142. Text of Proposed Sub-Regulation 9:

143. The Proposed sub-regulation makes it evident that it envisages imposition of penalty 'as per the provisions of the Act'. The sub-regulation 9 has proposed that representatives of the parties which form a part of the confidentiality ring shall be liable for penal action as per the provisions of the Act, in the following cases:
     
     
     1. Breach of undertakings filed by the representatives of the parties forming part of Confidentiality Ring; or
     2. Submitting incorrect information while claiming confidentiality on self-certification basis.

144. The conjunction 'or' in the aforementioned sub-regulation squarely points to an inference that the above two 'offences' are mutually exclusive and independent of each other. Therefore, representative(s) may be liable either for breach of undertaking(s) or for submission of incorrect information or both.

145. Further, the Sub-Regulation states that the aforesaid acts would render the person liable for penal action as per the provisions of the Act. However, there are no provisions in the Competition Act which expressly provide for penal action in respect of the aforesaid acts. There could be an argument which advances the notion that Section 45 of the Competition Act (which deals with and envisages punishment for furnishing false documents/ statement) could apply to a conduct where a party submits incorrect information while claiming confidentiality on self-certification basis (Clause (b) above). Therefore, a representative of the party forming part of confidentiality ring may be dealt with in accordance with Section 45 of the Act for submitting incorrect information while claiming confidentiality on self-certification basis.

146. However, there does not seem to be any provision whatsoever in the Competition Act which renders a person liable for penal action in regard to clause (a) above i.e. breach of undertakings by representatives of parties stating that information accessed by them pursuant to such Ring shall not be shared/ disclosed. The Competition Act does not presently provide for any penalties for acts of sharing of or disclosing confidential information in breach of an undertaking. In fact, 'undertakings' in the sense contemplated by proposed Sub-Regulation 9 is neither mentioned anywhere in the Competition Act, nor is breach of undertaking on account of sharing confidential data by any party or representatives thereof, prohibited by the Competition Act, 2002. This begs the question of how a representative committing a breach of undertaking(s) be dealt with as "per the provisions of the Act" when the Competition Act itself is silent on such aspect.

147. The Competition Act is conspicuously silent on imposition of penalty for the aforementioned act/ offence i.e. breach of undertaking filed by a party which is a part of the confidentiality ring. In fact, such a penalty could not have been envisaged by the Parliament in absence of any provision in the Act which contemplates filing of undertakings by members of Confidentiality Ring.

148. Therefore, it seems the proposed inclusion of the proposed Sub-Regulation (9) in its present form and manner would result in creation of a new offence i.e. the offence of breach of undertakings filed by the parties forming part of the confidentiality ring, which is not contemplated by the parent Competition Act under which the regulations are proposed to be issued. This also gives rise to issues of jurisdictional propriety.

149. The proposed regulations are to be issued in exercise of powers conferred by Sections 36, 57 and 64 of the Competition Act. The power to make regulations have been especially conferred by virtue of Section 64 of the Competition Act. Section 64 only empowers the CCI to make regulations which are consistent with the Competition Act and does not give any power to CCI to introduce new offences which shall invite penal action. The only clause which relates to penalty is clause (g) of Section 64. Even Clause (g) relates to only those penalties which are contemplated by and under the Competition Act. The said clause clearly and categorically restricts the power of the CCI to make regulations as to the 'manner' in which penalty shall be recovered. Therefore, the CCI is only empowered to frame regulations which could provide for the manner of recovery of penalty and cannot under Section 64 determine or introduce new offences which shall attract penal action. Further, even clause (h) of Section 64 is restricted in its application and does not empower the CCI to introduce new offences by framing regulations. Any notification by way of which new offence(s) are introduced by CCI would be inconsistent with the Competition Actand fall foul of principles of administrative law.

150. The Hon'ble Supreme Court, in Municipal Corporation of Delhi vs. Birla Cotton, Spinning and Weaving Mills ⁴⁷, in Para 13 has recognized the power of the legislature to delegate its functions, whilst categorically observing that -"the subordinate authority must do so within the frame-work of the law which makes the delegation, and such subordinate legislation has to be consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law".

151. The CCI has no power whatsoever, whether express or implied, which permits it to introduce new offence (i.e. offence of breach of undertaking(s) filed by the representatives of the parties forming part of confidentiality ring) as is seemingly being proposed by Sub-Regulation 9.

152. The Sub-Regulation 9 seems to have been proposed in pursuance to an incorrect interpretation whereby the power to frame regulations as to the manner for recovery of penalty appearing under Section 64(2)(g) of the Competition Act has been construed to mean and include the power to frame regulations which introduce new offences which may render a representative/ party liable for penalty. By no stretch of imagination or creative interpretation, can Section 64 be interpreted in such a broad manner so as to cover within its ambit the power to introduce completely new categories of offences which were not envisaged by the legislature.

153. Therefore, it may not be incorrect to state that proposed Sub-Regulation 9 lies on a precarious foundation and is susceptible to being struck down if the same were to be challenged before the Constitutional Courts in potential proceedings invoking the writ jurisdiction of HCs/ SC.

154. The subordinate or delegated legislation i.e. the proposed Sub-Regulation 9 goes beyond the scope of authority conferred on the CCI under the enabling provision i.e. Section 64 of the parent or enabling act, and therefore, seems to be a case of substantive ultra vires. The CCI, by proposing to introduce of new offences which shall attract penal action has seemingly ventured into an area beyond the scope of authority conferred upon it under Section 64 of the Competition Act.

155. The established principle of administrative law is that a creature of statute (in this case, the CCI) is not empowered to make any rule or issue any notification which is not authorised by the parent statute and in case the authority which has been established by a statute exceeds the power delegated to it and acts in excess thereof, the courts shall be empowered to exercise their power of judicial review and strike down such rules/ notifications. Neither does the Competition Act empower CCI to determine new offences nor can the legislature/ Parliament abdicate its essential legislative function of determining which actions constitute an offence under the Competition Act. Any law by virtue of which the Parliament of India delegates to another body or authority its essential legislative functions are liable to be declared ultra vires.

156. The proposed Sub-Regulation 9 seems to be case where a creature of a statute i.e. the CCI has exercised power to introduce or determine new offences(s) even though the parent statute (Competition Act) does not provide so and has in fact, specifically confined and restricted the power of CCI to make rules which provide for only the manner in which penalty shall be recovered. Further, the determination of acts which shall constitute an offence ought not to be delegated by the Parliament to the CCI, without any express guidelines ⁴⁸ in this regard, as it would amount to delegation of essential legislative functions which is not permissible under the law. In Vasantlal Maganbhai Sanjanwala vs. State of Bombay, AIR 1961 SC 4, the Constitution Bench of the Hon'ble Supreme Court, made the following observation:

157. Without prejudice to the above comments/ submissions which seek to propound the view that CCI has, in framing the proposed Sub-Regulation 9, exercised jurisdiction not vested in it by law and that CCI does not have any power under the Act to make regulations which introduce new offences or determine acts which constitute offences rendering the person liable for imposition of penalty, it is also true that Sub-Regulation is also couched in a language which makes it ambiguous and susceptible to challenge.

158. The aforementioned provision i.e. proposed Sub-Regulation 9 which renders the representative of the party liable for penal action read as under:

159. The aforesaid provision is susceptible to an argument by (representatives of) parties that it applies only to 'representative of the parties concerned forming part of confidentiality ring' and not to other representatives. The language employed in clause 2(9) seems to propound the view that the clause relates only to 'representatives of the parties concerned forming part of the confidentiality ring' and not to other representatives who do not form a part of the confidentiality ring.

160. Further, Sub-Regulation 2 as discussed hereinabove also contain provisions for claiming confidentiality on self-certification basis by providing an undertaking certifying the claims in terms of stipulated requirements. Since, the language of Sub-Regulation 9 suggests that it only applies to representatives who form part of confidentiality ring, the regime sought to be established by the proposed amendment regulations are susceptible to arguments that there is a conspicuous absence of any provision in the proposed regulations which penalises the act of furnishing false or incorrect information/ undertaking certifying the claims of confidentiality by representatives of concerned parties who are not a part of confidentiality ring.

161. However, in all likelihood, the purpose for introduction of the proposed sub-regulation is not to permit representative of parties furnishing false or incorrect undertakings/ information while claiming confidentiality on self-certification basis and who do not form a part of confidentiality ring, to escape penalty. It is difficult to fathom reasons as to why CCI will deem it prudent to provide for provisions attracting penal action in respect of breach of undertakings given by 'representatives of the parties concerned forming part of the confidentiality ring' whereas no such provisions exist in respect of a party/ company secretary, compliance officer, or any other senior officer who do not form a part of confidentiality ring and who furnish a false undertaking certifying the claims of confidentiality or otherwise contravenes Sub-Regulation 2 of the proposed amendment. Such discrimination between two offences of seemingly similar nature ought to have been based on some intelligible differentia which appears to be absent in the proposed regulations.

162. In all probability, the purpose and intention of introduction of draft amendment regulations was not to permit representatives which do not form part of confidentiality ring to escape penalty even in case of contravention of Sub-Regulation - 2 by furnishing false undertaking or incorrect information while claiming confidentiality on self-certification basis. However, the language employed in clause 2(9) can lead to such undesirable interpretations.

163. Further, the rule of interpretation of statutes are that penal provisions should receive a strict construction where the person to be penalised must come squarely within the plain words of the enactment and such provisions ought to be construed strictly in favour of the person facing the penalty. Therefore, it is imperative that the Sub-Regulation-9 is clear and unambiguous in this regard. Without further going into the issue of whether the CCI is competent to introduce new offences which attract penalties by way of regulations, if the CCI intends to initiate penalty proceedings in respect of parties/ company secretaries/ compliance officers which furnish false undertakings or claims beyond the ambit of proposed Sub-Regulation - 2, then Hon'ble CCI should clearly draft provision by using language which is clear, specific and unambiguous.

164. However, that being said, the argument still remains that even those representatives who do not form a part of the confidentiality ring and who submit incorrect information while claiming confidentiality on self-certification basis will still fall within the ambit of Section 45 of the Parent Act and therefore, absence of rules in the proposed regulations will not permit them to escape penalty. However, in such case, there was no need or requirement to specifically formulate a rule which provides for penal action in case of representatives who form a part of the confidential ring as even such representatives would fall within the ambit of Section 45 therefore rendering the particular provision wholly redundant.

165. The lack of clarity on penalty provisions will prove to be severely detrimental both for the persons/enterprises which are found in contravention of the provisions of Proposed Regulation as well as the CCI due to susceptibility of the provision to challenge and ultimately being struck down before Constitutional Courts.

166. Additionally, it is also pertinent to state that since penalty is contemplated for false and incorrect information while claiming confidentiality on self-certification basis, it necessarily implies an inquiry by the CCI/ DG before determining that a representative/ party has tendered incorrect information. Since the regulations envisage grant of confidentiality merely on the basis of self-certification, therefore, it is not clear as to the cases in and circumstances under which inquiry shall be undertaken to ensure parties have not provided incorrect information. The Proposed Regulations also do prescribe any procedure for such an inquiry. It is only natural to infer that CCI will not undertake such inquiries in all cases as it would be counter-productive to the very purpose for which the regulations have been proposed to be introduced. However, it is not clear at what stage would CCI examine confidentiality claim and it would be prudent to include a provision which clarifies the circumstances in which such inquiry may be undertaken such as in cases where the CCI has a 'reason to believe' that parties have submitted incorrect information.
     
     Further, the proposed regulations are also conspicuously silent on aspects of right so seek compensation. In the event, member(s) of the confidentiality ring suffer losses due to breach of the provisions by other member(s), then such aggrieved members should have the right to seek compensation. The Commission must consider widening the language of the Proposed Sub-Regulation 9 to include to the right of aggrieved parties to seek compensation.

167. Reference may be drawn from the European Union, which, in its guidance on 'The use of confidentiality rings in antitrust access to file proceedings' provides that the information provider has the right to seek damages from members of the confidentiality ring in the event such information is leaked or is used in an unauthorized manner.

AnantLaw's Recommendations:

168. It is recommended that the Proposed Sub-Regulation 9 besupplemented with language providing clarity on the penalty that is to be attributed to the contravention of the provision. The language should specify monetary and penal liability on enterprises and persons including relevant section(s) within the Act under which the same is to be treated.

169. An amendment in the parent act i.e. Competition Act may be a prudent exercise to provide for penal action for breach of an undertaking which is presently not covered by penal provisions of the Competition Act.

170. Further, in line with the provisions of compensation within the Competition Act, and owing to the larger duty of the Commission to protect the confidentiality of sensitive information disclosed to it during investigation, the Commission should consider including a provision entitling the aggrieved parties to seek compensation for the breach of confidentiality by its officers and/or employees within the Proposed Sub-Regulation 13.

171. Key Suggestions
     
     
     • Sub-Regulation 8 should include process of replacement of members in the confidentiality ring in a manner which secures the confidentiality of information and documents which are provided to the members of the confidentiality ring.
     • Sub-Regulation 9 should be weighed against the principles of administrative law lest it may be struck down by the Constitutional Courts. A more prudent approach would be to bring about an amendment in the Parent Act i.e. Competition Act, 2002 to ensure that the subsidiary rules i.e. Sub-Regulation 9 is in conformity with the same.
     • Sub-Regulation 8 should also provide for the consequences of contravention of the obligation by enterprise(s).

B9 Right Of Defence And Transparency

172. While maintaining confidentiality of documents and information supplied to or discovered by the Commission/DG office, the twin objectives of transparency and the right of defence of parties should not be compromised and should be given equal value and opportunity.

173. In view of this understanding, the Proposed Sub-Regulation 10 is examined. It provides that out of the documents or materials obtained through search and seizure conducted by the DG, only those which have been relied upon or used in the inquiry or investigation shall be provided to the members of the confidentiality ring. Further, those documents or information which were collected during investigation at the level of the CCI/DG, but which have not been used in the matter shall not be shared through the confidentiality ring.

174. Text of Proposed Sub-Regulation 10:

AnantLaw's Recommendations:

175. Examining the aforementioned proposed Sub-Regulation 10 from the perspective of right of defence of the parties, it is imperative to note that the provision of selective documents will adversely impact the right of parties to defend themselves, being faced with only those documents which can be used against them. Further, it hampers the process of a fair and just investigation and the process of investigation will suffer from a confirmation bias. The absence of information critical to the case of the parties will deny them the chance to effectively substantiate their challenge to the orders of the CCI/DG.

176. It is submitted that the parties have an absolute right to have access to all exculpatory and inculpatory documents, evidence, statements etc.

177. It is recommended that in line with the current jurisprudential understanding of the right of defence linked with the access to all evidence, information and documents and not just those which have been relied upon or used by the CCI/DG must consider incorporating the same within the Proposed Sub-Regulation 10.

178. Furthermore, the withholding of documents/material obtained through search and seizure and information/documents not used during investigation from the confidentiality ring and filtering those documents which have been relied upon by the CCI/DG office would only restrict the ambit of visibility of the members of the confidentiality ring and defeat the very purpose for which it has been proposed.

179. Key Suggestions:
     
     
     • The CCI should consider amending the language of the Proposed Sub-Regulation 10 in order to provide all documents, information and material collected through search and seizure to the members of the confidentiality ring so that transparency and right of defence of the parties is maintained.
     • The CCI should consider providing all those documents which have been collected during investigation, even if the same have not been relied upon by the CCI and/or the DG.
     • In order to effectively manage the sharing of all information, documents and materials, the CCI may also consider providing guidance on the use of such information shared within the confidentiality ring. The CCI may also establish technical standards of security and modes of sharing large volumes of information by the CCI/ DG so that the same is done with smoothly.

C. CONCLUSION

180. A bare reading and analysis of the proposed regulations bring up certain important concerns for the consideration of this Hon'ble CCI. To summarise, it is important that confidentiality over the identity of the informant is maintained by the CCI at all costs. Likewise, revocation of such confidentiality without granting the informant an opportunity of hearing is not only in contravention of the principles of natural justice but also severely prejudices the interest of the informant. Furthermore, an order revoking the grant of confidentiality over the identity of the informant ought to appealable under the Competition Act. This will also reduce unnecessary litigation under the writ jurisdiction of the constitutional courts of this country. It is also imperative that the terms 'may' and 'shall' are not used loosely as the same will only cause ambiguity and these terms are bound to be interpreted strictly.

181. As an extension to the concept of grant of confidentiality, it is pertinent that the CCI adjudicate the claims of a party seeking confidentiality over the documents and not grant blanket confidentiality solely on a self-certification basis. Such a blanket grant of confidentiality gives an impression that the CCI is attempting to abdicate its role/ duty in investigation and shifting onus onto the parties. It is recommended that in cases wherein blanket confidentiality is provided on a self-certification basis, the CCI might consider substituting the term "may" used in the proposed Sub-Regulation 6 with "shall" thereby paving the way for mandatory constitution of confidentiality rings which will ensure that all the parties have an equal right of defence, by being privy to the confidential documents submitted against it.

182. There is no doubt that the formal introduction of the concept of confidentiality rings is a welcome move and reflects upon the mature approach of the CCI in line with the international jurisdictions, yet there are certain areas, which may require deeper analysis and reconsideration by the Commission. To further elaborate, some crucial and important aspects relating to formation of confidentiality rings are conspicuously absent in the proposed regulations. It is still not clear whether parties can make a request for forming a confidentiality ring or only the CCI/ DG can set up a confidentiality ring on suo-moto basis. The proposed amendment is also silent on whether a party to the proceedings before the CCI, whose information is sought to be disclosed, can oppose or object to the setting up of a confidentiality ring or not. The absence of specific provisions relating to these crucial aspects will foster uncertainty which is a never a desirable characteristic in any legal regime. It is also recommended that the process and consequences of removal or resignations by members forming part of the ring be also laid down to provide clarity on procedure sought to be adopted and ensure consistency of approach in application of the proposed regulations. Similarly, filing of compliance affidavits post culmination of proceedings will ensure compliance of the obligation to destroy documents after culmination of proceedings and at the same time, inspire confidence of the information providers enabling them to approach the CCI without any fear of 'leaks' at any stage after conclusion of proceedings before the CCI.

183. It is also imperative for reasons stated in this 'note' that the CCI, for effective functioning of the confidentiality rings, consider making every confidential information provider as well as external advocates a part of the confidentiality ring. Further, strict adherence to 'due process' necessarily requires that the Proposed Amendment be accompanied by a detailed procedure on the working and conduct of the parties in a confidentiality ring. It is also not out of place to mention that advocates have, in the past, advanced the cause of justice by becoming part of confidentiality clubs/ rings in pursuance of the High Court (Original Side) Rules, 2018. Amongst all the categories of representatives, advocates on account of their formal training of and practical experience in application of law are the most suitable 'external' representatives who can not only adhere to confidentiality requirements but also simultaneously secure a party's right of defence by rendering effective legal assistance. It is also equally true that in case of sole proprietorship firms, there may not be (many) employees available from a non-operational stream for constituting a confidentiality ring. Therefore, it may be prudent to formally and clearly recognize the class of 'advocates' as potential members of the confidentiality rings.

184. It is also imperative to ensure that penal action contemplated by introduction of the proposed amendment do not violate settled principles of administrative law lest these subsidiary rules in the form of regulations providing for penal action will become susceptible to being struck down by the Constitutional Courts or may otherwise become a subject-matter of litigation. It is recommended that introduction of a new offence such as the offence of committing a 'breach of undertaking' be brought about by an amendment in the Competition Act rather than by way of amendment in the subsidiary rules, which may not be able to withstand judicial scrutiny. It is also suggested that penal provisions be couched in clear and unambiguous language which squarely cover the persons sought to be charged.

185. We are hopeful that the issues highlighted in these 'recommendations' will be given due consideration lest the Proposed Regulations may lead to undesirable results which can prove to be antithetical to the very objectives for which the regulations have been proposed to be introduced.

186. Finally, it goes without saying that the initiative of the CCI in inviting public comments and making the process of introduction of the proposed regulations, which will have a profound impact on not just the parties which are subject to proceedings before the CCI but also other stakeholders, an inclusive one, is commendable and much appreciated.

187. We hope to assist the CCI in ensuring that provisions of the Competition Act, 2002 are enforced with due regard to principles of natural justice. Further, we remain available for any clarifications in respect of our suggestions and recommendations.

Footnotes

1. Somi Conveyor Belting Ltd. and Ors. v. Union of India and Ors. [W.P.(C) 1416/2016] & Premier Rubber Mills v. Union of India & Ors. [W.P.(C) 1969/2016] (clubbed), order by Hon'ble High Court of Delhi dated 11.04.2017

2. Report of monopolies Inquiry Commission, 1965, at Page 204, available at http://reports.mca.gov.in/Reports/44-Report%20of%20the%20monopolies%20inquiry%20commission%201965,%Report of monopolies Inquiry Commission, 1965, at Page 204, available at http://reports.mca.gov.in/Reports/44-Report%20of%20the%20monopolies%20inquiry%20commission%201965,%20Vo1.-I-II.pdf;

3. Raghavan Committee Report, 2000, at Page 63, Chapter 6, Para 6.4.6;

4. Ibid at Page 63, Chapter 6, Para 6.4.8;

5. Report of the working group on Competition Policy, Planning Commission, Government of India, at Para 6.2.6;

6. The CLRC Report, 2019 at Para 12.2;

7. Ibid at Para 12.4;

8. (2011) 2 SCC 258;

9. Rule 6(7) of the 1995 Rules;

10. Union of India v. Meghmani Organics Ltd. (2016) 10 SCC 28

11. Interdigital Technology Corporation v. Xiaomi (2020 SCC OnLine Del 1633);

12. See : Telefonktiebolaget LM Ericsson v. Lava International Ltd. (CS (OS) 764/2015);

13. Article 339 of TFEU;

14. Article 101 and 102 of TFEU;

15. Case T-353/94 Postbank NV/Commission, Judgment of the Court of First Instance (First Chamber) dated 18th Sept, 1996

16. See European Commission's Guidance Note titled "Guidance on confidentiality claims during Commission antitrust procedures" (2018); available at https://ec.europa.eu/competition/antitrust/business_secrets_en.pdf

17. Para 71, Case T-198/03 Bank Austria Creditanstalt AG/Commission, Judgment of the Court of First Instance (Second Chamber) dated 30th May, 2006.

18. Para 84, Case T-341/12 Evonik Degussa GmbH v Commission; Judgment of the General Court (Third Chamber) dated 28 January, 2015;

19. The use of confidentiality rings in antitrust access to file proceedings, Competition DG, EC, available at https://ec.europa.eu/competition/antitrust/conf_rings.pdf;

20. Available at https://ec.europa.eu/competition-policy/cartels/whistleblower_en;

21. Act No. 89 of 1998, South Africa;

22. § 44, Competition Act SA;

23. Sub-section (3A) of § 43B (1), Competition Act SA;

24. § 44, Competition Act SA;

25. § 45, Competition Act SA;

26. [2013] JOL 30105 (CAC);

27. Rule 35(12), Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the Supreme Court of South Africa ("Uniform Rules of Court");

28. § 57b-2 of the Federal Trade Commission Act;

29. § 18a(h) of the Clayton Act;

30. Section 89, Competition Act;

31. Rule 28, Competition Regulations, 2007;

32. Civil Appeal no. 3100 of 2020;

33. CCI Case No. 07 of 2020;

34. CCI Case No. 12 of 2016;

35. W.P. (C) 11072/ 2015; Order dated 02.12.2015

36. CM No.32052/2015 in W.P. (C) 11072/2015; Order dated 29.09.2016

37. CCI and Anr. vs. Forech India Ltd., LPA 97/2017

38. SLP (C) No. 9018-9019 of 2020.

39. W.P.(C) 3051/2016 & CM 12874/2016;

40. COMPAT Appeal no. 105 of 2012;

41. COMPAT Appeal no. 35 of 2016;

42. Suo Moto Case No. 01 of 2018;

43. CCI Suo Motu Case No. 7 (01) of 2014;

44. (2010) 10 SCC 744;

45. (1990) 4 SCC 594;

46. See Clause A4.1, The European Union, Concept of Confidentiality in International Jurisdiction, Part I

47. AIR 1968 SC 1232.

48. See Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 and M/s. Dwarka Prasad Laxmi Narain v State of Uttar Pradesh & Ors., AIR 1954 SC 224

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