Revitalising Antitrust Collaboration: CCI's Settlement And Commitment Regulations

The introduction of Settlement and Commitment Regulations by the Competition Commission of India, in line with the Competition (Amendment) Act 2023, signifies a significant leap towards fostering a collaborative and efficient antitrust enforcement environment.

From a corporate standpoint, settlements and commitments offer a constructive avenue for resolving alleged contraventions related to anti-competitive practices and abuse of dominance, thereby averting prolonged legal battles. It's noteworthy that globally, businesses in leading jurisdictions such as the European Union, the United Kingdom, Germany, and Japan have increasingly embraced settlement mechanisms to address antitrust concerns. This trend underscores the importance of businesses engaging in these processes with confidence in the regulatory framework and underscores CCI's commitment to upholding principles of natural justice as outlined in Section 36 of the Competition Act. Not only does this approach enable businesses to swiftly address regulatory queries, but it also fosters a positive relationship with authorities, showcasing commitment to compliance and corporate responsibility.

Nevertheless, upon closer examination of the detailed provisions in CCI's draft regulations, there emerge critical areas warranting strategic enhancements. By fostering a more adaptable and fair framework, CCI can ensure that these mechanisms serve as robust tools for collaborative resolution, all while nurturing the competitive landscape of the Indian market.

A critical re-evaluation is necessary regarding the protection of applicant information within the CCI's settlement and commitment mechanisms. The current provisions allowing the use of gathered information against the applicants act as a deterrent for businesses from engaging initially. This is particularly contradictory to clauses 7(1) and 6(1) of the S&C Regulations drafts, which stipulate that the Commission's order agreeing to the commitments and settlement offered shall not imply a finding of contravention against the applicant. Notably, international best practices, particularly in the European Union and the United Kingdom, prioritise the protection of such disclosures to foster better cooperation from involved parties. 

It's imperative that the settlement or commitment process does not imply an admission of guilt. This distinction is crucial for incentivising entities to participate in these mechanisms without apprehension of implied liability. The mere fact that parties are proactively stepping forward to rectify alleged contraventions should be taken into account by the Commission. As demonstrated by domestic precedent, such as the SEBI Act, 1992, in conjunction with the SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014, a mechanism exists for settling specific violations through the payment of fees without admitting guilt. 

The draft regulations currently impose a strict timeline for entities to submit their applications for the commitments and settlements process. This narrow window, set at 45 days with a potential 30-day extension on reasonable grounds, may inadvertently limit the effectiveness and thoroughness of the mechanisms. To align with the primary goals of these mechanisms—enhancing efficient decision-making and reducing the burden of litigation—a reassessment of these time constraints would promote a more impactful regulatory environment.

The commission could consider adopting a slightly longer timeline that allows parties to thoroughly analyse, vet, draft, and even seek consultation on their applications. This concern has also been raised by various industry leaders. Drawing inspiration from Australia, which does not have a fixed timeline for submission of applications, the CCI could explore preserving the essential framework by requiring commitment applications to be submitted after the initiation by the DG but before the report submission, and settlement applications to be submitted post-report but before the final order.

The CCI's decision to appoint external agencies for the oversight and implementation of the proceedings is commendable. Yet, ensuring that these agencies maintain an unequivocal distance from any conflict of interest, extending to cover any substantive relationship with the applicant's competitors, is crucial for maintaining integrity and trust in these processes. It's crucial for the Commission to clearly define the policy on ‘conflict of interest’ that should ideally embody all types of relationships between the applicant's competitors and the overseeing agencies, not just direct financial ties. This should include familial ties, professional interactions, previous accounting agreements, and business engagements, such as board memberships, whether current or past. Highlighting the importance of identifying any potential connection ensures the oversight agency's neutrality and guards against any undue influence.

The lack of clarity regarding the applicability of these mechanisms to ongoing cases represents a missed opportunity. By enabling current pending cases to avail themselves of these new regulations, especially those at critical junctures, the CCI can substantially alleviate its case backlog and expedite the resolution process. It's worth noting that the average resolution time for competition cases currently stands at a daunting 25.7 months. Therefore, implementing this approach would not only benefit the parties involved but also enhance the overall efficiency of antitrust enforcement in India. Additionally, the Commission could explore options such as one-time commitments, settlement features, or equivalent approaches to further streamline the process and promote timely resolution.

The regulations necessitate applicants evaluating the 'impact' of their contraventions, a process that inherently carries subjective elements. To address this challenge, the CCI should establish quantifiable metrics and a standardised framework, similar to financial, economic, and market-based indicators. This would ensure a consistent and objective assessment of the 'impact(s)'. By establishing clear benchmarks, such as financial impacts, shifts in market share, the number of affected parties, or other quantitative criteria, applicants can provide a precise and objective analysis. This would assist the Commission in conducting a thorough and consistent evaluation, thereby enhancing the reliability and effectiveness of the assessment process. 

Stressing the utmost importance of confidentiality throughout the settlement and commitment proceedings is essential. Although Clause 5(1) in both S&C references a 'non-confidential summary', there is currently no explicit provision granting the settlement or commitment applicant the right to assert confidentiality over their submissions. We advocate for the implementation of a confidentiality ring aimed at safeguarding sensitive information, a practice previously enshrined under Section 57 of the Competition Act.

Furthermore, the Commission can draw inspiration from the precedent set under Section 245G of the Income Tax Act, wherein individuals are restricted from inspecting or obtaining copies of reports related to proceedings submitted by income tax authorities to the Settlement Commission, except for the involved parties. We argue for the right of applicants to assert an adequate and universally recognised level of confidentiality over their submissions.

Establishing a nuanced approach that balances the protection of companies' reputational interests with ensuring transparency in the settlement and commitment processes is crucial. This could foster greater trust and willingness among stakeholders to engage with these mechanisms.