Assignment 4

Conflict between Confidentiality Ring Regulations with the Evidence Act and Advocates
Act

Research

https://www.cyrilshroff.com/wp-content/uploads/2022/04/Client-Alert-CCIs-new-
confidentiality-regime.pdf

1. On April 8, 2022, the Competition Commission of India (“CCI”) announced important changes to the
regulations for the treatment of confidential information in its proceedings. The changes were notified
by substituting Regulation 35 of the Competition Commission of India (General) Regulations, 2009
(the “Amended Regulation”).1

Self-Certification

3. Parties now have to submit an undertaking certifying their confidentiality claims, along with cogent
reasons for seeking it. The process for assessment of each such claim by the CCI/ Director General (the
“DG”), the acceptance/ rejection orders passed by the CCI/ DG and the appeals process against such
orders stand replaced by the self-certification regime in the Amended Regulation.
4. Parties would continue to explain their reasons for claiming protection against making the information
public.
5. The self-certification is subject to an undertaking that (i) the information is not available in the public
domain; (ii) it is ‘known only to limited persons’ involved in the party’s business; (iii) ‘adequate
measures’ have been taken to guard the secrecy of such information; and (iv) it cannot be acquired or
duplicated by others.
6. If an incorrect self-certification is furnished, the party will be liable to be penalised under the
provisions of the Competition Act, 2002 (as amended) (the “Act”). The penalty for providing an
incorrect undertaking could be covered under Section 45 of the Act, dealing with penalty for
furnishing, inter alia, false statements/ documents, where the CCI may impose a monetary penalty of
up to INR 10 million (approximately USD 130,608).

 All ‘personal information’ has automatic protection under the Amended Regulation. That said, personal
information has not been defined under the Act or the regulations. However, guidance is available in
the Information Technology (Reasonable security practices and procedures and sensitive personal data
or information) Rules, 20112, which defines personal information.

 With a view to allow parties access to confidential information/ documents of other parties during an
investigation, to defend themselves effectively, the CCI has introduced the concept of the
“confidentiality ring”. The CCI may at its discretion set up a confidentiality ring comprising
representatives of the parties who will be given access to all confidential information (including the
confidential version of the DG’s report, documents obtained during search and seizure and complete
version of the CCI’s orders).

 Parties would have to undertake that their respective members would not disclose the information
provided to them with anyone outside the confidentiality ring. If members breach their undertaking, the
CCI will have complete authority to impose penalties, and counter parties may also seek suitable
remedies as per applicable law. It is unclear which provision of the Act would be applicable for the
imposition of such penalty by the CCI.

10.The informant (complainant) will be included in the confidentiality ring only if the CCI considers it
necessary.
The changes to the confidentiality regime bring the CCI’s standard closer to global best practices. In practice,
the CCI had already started creating confidentiality rings after sharing the DG report with parties, codifying this
practice is a step in the right direction. It will not only help the CCI in preserving confidential information of
parties, but also in balancing the right to defence of one party vis-à-vis the right of the other party to protect its
confidential information.

Concerns:

(a) the circumstances/ minimum threshold where the CCI will set up confidentiality rings. Will it be a standard
protocol for all enforcement matters?

(b) the process of setting up a confidentiality ring and at what stage of investigation it would be set up. For
instance, in the recent cases, confidentiality rings were set up by the CCI and members were granted access only
after the DG’s investigation report was shared with the parties. It is unclear if the CCI will be open to setting up
a confidentiality ring at an earlier stage, i.e., before passing a prima facie order;

(c) as regards the reasons for claiming confidentiality:

i. what would be acceptable to the CCI as amounting to ‘disclosure of trade secrets’, or ‘destruction or
appreciable diminution of the commercial value’ of any information, or ‘disclosure which is reasonably
expected to cause serious injury’ in order to claim confidentiality? For example, the European Commission’s
guidance note on confidentiality claims during antitrust procedures 3 provides illustrations of the information that
may or may not be considered as business secrets4. Similar guidance from the CCI will be helpful, considering
the penalty risks associated with incorrect identification of confidentiality claims; and

ii. what the terms such as ‘known only to limited persons’ or ‘adequate measures’ to guard the secrecy of such
information state.

EU guidelines as to what will be determined as ‘business secret’

https://ec.europa.eu/competition/antitrust/business_secrets_en.pdf

8. Business secrets are confidential information about an undertaking's business activity

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 11.
Examples of information that may qualify as business secrets include: technical
and/or financial information relating to an undertaking's know-how, methods of
assessing costs, production secrets and processes, supply sources, quantities produced
and sold, market shares, customer and distributor lists, marketing plans, cost and price
structure and sales strategy.
http://competitionlawblog.kluwercompetitionlaw.com/2019/04/23/confidentiality-under-
indian-competition-law-and-its-applicability/

After reading Regulation 35 General Regulations, 2009 and section 57 of the

Competition Act (Act), it would be nonetheless clear that confidentiality is a
procedural aspect which is granted by the Competition Commission of India
(CCI) and the Director General (DG) upon request from the parties. Moreover,
while interpreting it can be seen that is much more than a procedural
requirement and has a vital role when conferred upon an enterprise for the
protection of business or trade secrets, and importantly, to protect identity of
an informant.

However, once confidentiality is granted, the parties to proceedings may

request under Regulation 37 and 50 for disclosure to prepare its defence as
there is no absolute entitlement to parties to inspect the documents or to
obtain copies of the same. This request is made to the CCI which can reject for
inspection or furnishing copies if it is of the opinion that the
documents/information require confidential treatment.[1] The CCI, of course,
has to consider that an enterprise would not like to disclose confidential
information to its competitors who are parties against them. That is why the
protection under proviso of Regulation 20(4) General Regulation, 2009,
requires the DG also to not to include in its report information once given
confidentiality.
Typically, categories of confidential information include trade secrets, legally
privileged information, financial information, information compiled for law
enforcement purposes, and information about individuals. In this context, the
CCI in Pune Municipal Corporation case[2] observed that evidence adduced
from any information, including the statements from parties who may have
sought for leniency and such statements are not part of leniency application,
the confidentiality on such evidence can only be in terms of Regulation 35
General Regulation, 2009.
If granted, the CCI & the DG then is required to maintain privacy and
confidentiality, strictly, while conducting investigation and proceedings as
provided under Regulation 35 and proviso of Regulation 20(4), respectively. 

https://www.lexology.com/library/detail.aspx?g=7141cc81-4f65-404b-9487-8a202540914c

Adhering to the principles of “due processes”, Indian judicial and regulatory authorities
have been taking steps to reduce delays in adjudicatory processes. Enforcement
proceedings relating to anticompetitive agreements or abuse of dominance before the
Competition Commission of India (CCI) may also not be immune to such inordinate
delays. Thus, it may require fresh attempts to get the processes streamlined to the
extent possible.
ssues relating to the protection of one’s confidential data / gaining access to the
confidential data of the other parties at the CCI generally take a life of their own in the
form of parallel or interlocutory adjudicatory processes. At times, such issues can
percolate to the Indian constitutional courts for adjudication. In the past, the Delhi High
Court tried to achieve a balance by limiting the number of people who would gain access
to confidential information on behalf of the receiving party on an ad hoc basis.2

Therefore, CCI felt the necessity to create a streamlined and faster process which could
align the right to protect confidential information with the right of the party affected by
such confidentiality claims. 

Scope of the Indian CR Regime 

The CCI considered adopting a confidentiality ring (CR) regime in April 2021 to resolve
this issue and accordingly, requested public opinions on a draft amendment. After
extensive consultation with stakeholders, the CCI (General) Amendment Regulations,
2022 was notified on 8 April 2022 which introduced the CR regime in India
(Amendment). 
Per the Amendment, confidential information of one party can be received by another
party by way of a CR. A CR will include certain authorised representatives of the
receiving parties (respondents / defendants) and only such persons will have access to
unredacted / confidential information. The Amendment also confirms that the CCI will
have the right to decide: (i) the extent of information made available in the CR; and (ii)
the constituent members of the CR. However, the Amendment does not disqualify any
kind of personnel from being selected as a CR member. 
The Amendment also clarifies that access to unredacted / confidential information will
only be granted to members of the CR pursuant to receipt of confidentiality
undertakings. Such undertakings need to be furnished both, to the CCI and the
disclosing party, stating that the member shall not share or disclose the information to
any person whatsoever. Further, such information should only be used for proceedings
under the Competition Act, 2002 (Act). The undertaking shall also state that the CR
members will destroy the documents after culmination of the present proceedings.
As per the Amendment, in case of breach of undertakings by any member of the CR, the
aggrieved party shall have the liberty to avail of suitable remedies as per law.
Regardless, the members in breach of their undertakings will also be held liable under
the Act. 

Further, the draft amendment stated that members of CRs shall be from “commercially
non-operational streams” to the extent possible. However, the extant Amendment
empowers the CCI to make any person a member of the CR, including a market facing
employee. In this regard, market distorting competitive concerns may potentially arise if
market facing employees utilise such confidential information in their day-to-day
functioning. Pertinently, this risk can be mitigated if such information is accessed only
by members from “commercially non-operational streams” who cannot use the
confidential information in their usual operations to lower the level of competition in a
market. 

Further, liability imposed on CR members for breach of confidentiality undertakings

seems to be dual pronged. While the CCI has stated that members breaching the CR
undertaking will be proceeded against “as per the provisions of the Act”, it also gives a
right to the disclosing party to avail suitable remedies “as per law”. Accordingly, once a
breach of CR is established, a member may face two parallel proceedings, (i) one under
the scheme of the Act; and (ii) another civil proceeding for compensation / damages. 

The proviso to the amended Regulation 35(7) also states that “representatives” of
parties shall be held liable for breach of undertakings. However, a CR arrangement is
strictly inter se the CCI and the parties, and the definition of “party” under the existing
CCI (General) Regulations, 2009 does not include “representatives”.4 Thus, it appears
that the Amendment is drafted specifically to expand the scope of the master regulation.
Further, legal representatives of parties are already bound to maintain client
confidentiality under the Indian Evidence Act, 1872 and the Advocates Act, 1961.
Therefore, adding further pecuniary onus in this regard may cause friction between
various legal frameworks. 

On April 8, 2022, the Competition Commission of India (‘CCI’)

notified amendments to the process of reviewing confidentiality
under Regulation 35 of the Competition Commission of India
(General) Regulations, 2009 (‘General Regulations’). These
amendments have been introduced after public consultation on a
proposal to amend the confidentiality regime. The revisions seek to
simplify the process of claiming confidentiality over information
submitted to the CCI.

 Self-certification of Confidential Information

 Parties claiming confidentiality will have to file an undertaking

confirming that the information over which confidentiality is
claimed meets the parameters mentioned under the General
Regulations i.e., (i) the information is not available in the
public domain; (ii) the information is known only to limited
 employees, suppliers, distributors and others involved in the
party’s business; (iii) adequate measures have been taken by
the party to guard the secrecy of the information; and (iv) the
information cannot be acquired or duplicated by others.

 This self-certification would automatically grant confidentiality

over information claimed as confidential. In case a false
undertaking is submitted, the CCI is empowered to take action
against individuals under the provisions of the Competition
Act, 2002 (‘Act’).

 Setting Up of a Confidentiality Ring

 Where necessary, the CCI can create a confidentiality ring

comprising authorised representatives of the parties. These
representatives may access confidential information of other
parties, including information contained in the confidential
version of the Director General’s report.

 The complainant will only be part of the confidentiality ring, if

the CCI considers it necessary.
 The CCI will have the power to decide the extent of
information to be made accessible through, as well as the
number of members to be included in, the confidentiality ring.

 Representatives of the parties will need to execute

undertakings to confirm that the information received by them
as part of the confidentiality ring will not be disclosed to those
beyond it, including to the other employees of the party (and
its subsidiaries, joint ventures, etc.) or third parties. Breach of
these undertakings can result in proceedings under the Act.

 Confidentiality over Personal Information

  Information collected during search and seizure operations,
email dumps, call details, or any other personal information
will be marked confidential and kept separately.

https://indianexpress.com/article/opinion/columns/confidentiality-ring-amendment-could-
make-antitrust-disputes-more-opaque-7873696/

The Competition Commission of India (CCI) has realised that disputes arising out of antitrust
matters, also known as competition or cartelisation, require confidentiality. The problems that
arise in the commission’s investigation under Sections 3, 4 or 5 of the Competition Act are
germane to the suo motu powers given to the director-general of the commission, which have
now extended toward establishing an opaque confidentiality ring. This was recently used in
an order dated March 7, passed by the DG-CCI on the Amazon dispute, wherein Amazon (the
defendant) decided to take the confidentiality route towards its submissions.

In Europe, where Amazon has a presence, antitrust matters are largely regulated under the
guidance note for Articles 101 and 102 of the Treaty of the European Union, which states:
“Through confidentiality rings, DG Competition (EU) can safeguard the rights of defence
while respecting the legitimate interests in the confidentiality of the information providers. In
addition, confidentiality rings remove or reduce the burden of preparing non-confidential
versions of documents.”

In 2015, the EU mandated the creation of a data room to respect the confidentiality of certain
documents. The EU has to protect this mandate to ensure that the right of defence is not
prejudiced. The CCI has taken an alternative view by vaguely replacing the intent with the
regulation which states, “Confidentiality Ring (sic) the Commission may do so after
providing a reasonable opportunity to the informant to represent its case before the
Commission.” This casts an onus on the informant. Turning to the provider of confidential
information, the party seeking confidentiality has to submit reasons and the same must be
rebutted by the informant, CCI or any other parties, largely driven by the CCI. The question
before the CCI now is whether it must adhere to the rule that every party to a dispute must be
heard. Yes, but as redacted by the parties seeking to present the information, at the discretion
of the CCI. This presents a two-pronged issue. First, what would happen if the informant
seeks additional documents so that the agency is not prejudiced? By hearing parties
out,through redacted information the CCI is bound to be questioned as to the reasons for
deciding in a certain manner and worse, could stifle the process at the start.

The second question is about the relief under Section 35 of the Act that empowers the CCI to
establish a confidentiality ring including the parties in dispute to disseminate the information
for which the confidentiality clause is invoked. However, this is immediately caveated by
Regulation 8 of the “Confidentiality Ring” Amendment of April 8, which states that the
informant shall not be part of the ring. This will essentially lead the CCI to gather more
information surreptitiously for the determination of the case. It has also effectively rejected
the informant’s right to know the information, which would be necessary to establish their
claim.
We have imported the “Confidentiality Ring” from the EU but we may have done it in a
manner that none of the decisions can be challenged. The protection provided to the
informants, unfortunately, turns out to be to the advantage of the defendants, who are usually
large multi-billion dollar entities. It enables the CCI to ringfence its investigation creating
legal immunity for “all” involved.

Moreover, because the investigation involves allegations of anti-competitive

conduct, the enterprises run an additional risk of loss of reputation and
goodwill (Ericsson v. CCI, 2016). It was, therefore, observed by the Delhi
High Court in Ericsson v. CCI that the CCI, the DG and employees of the CCI
are under a mandate to preserve secrecy and confidentiality of the sensitive
information provided by the enterprises and they must take adequate
measures towards maintaining the same. Negligent conduct on their part
leading to failure in maintaining confidentiality may attract a claim of loss or
damages.

Regulation 6 of the Competition Commission of India (Lesser Penalty)

Regulations, 2009 [hereinafter, “the LPR, 2009”] provides that the
applicant’s identity and the data, documents and evidence furnished by the
applicant under Regulation 5 shall be treated as confidential. The proviso to
the regulation, on the other hand, specifies the following three
conditions under which the identity of the applicant or such date,
information, documents or evidence may be disclosed-

1. Where the disclosure is mandated by law; or

2. Where the applicant has provided a written consent for disclosure;
or
3. Where there has been public disclosure by the applicant himself.

It is clear that competition law cases, by their very nature, are more likely to give rise
to an application for orders that a confidentiality ring be put in place with rules
around the manner in which documents can be dealt with when disclosed by one
party to the other.   Mr Justice Barrett observed that confidentiality rings are
increasingly becoming standard practice in competition law proceedings in the
United Kingdom.  In the particular circumstances of Goode Concrete, the Judge made
the following orders, which are representative of the typical orders one finds:
 it was not necessary for Mr. PG, as distinct from independent expert
advisors engaged by Goode Concrete, to see any material that was
ordered to be discovered,

 the discovery ordered by the court would be the subject of a

confidentiality ring comprising the legal advisors to Goode Concrete
and such independent expert advisors as may be engaged by Goode
Concrete in the pursuit and advancement of the proceedings, subject to
 liberty to apply to the Court on the part of any or all of the defendants
in the event that the operation of the confidentiality ring and/or the
addition of any particular independent expert advisor/s to such ring is
considered to present a difficulty in terms of the very confidentiality
that the ring is established to protect,

 all the legal advisors to Goode Concrete would undertake to the court (i)
not to disclose to any party outside the confidentiality ring the
substance or tenor of any such discovered documentation aforesaid,
and (ii) to respect the spirit as well as the letter of the order concerning
the establishment of the confidentiality ring, and

 the solicitors to Goode Concrete would undertake that any expert to be

joined to the confidentiality ring shall only be so joined where s/he has
previously agreed in writing with those solicitors to treat with all such
discovered documents aforesaid on like terms of confidentiality to
which those solicitors are subject.

(6) The Commission may, if considered necessary or expedient, set up Confidentiality Ring(s)
comprising of such authorised representatives of the parties, including, but not limited to, the
authorised representatives specified under Section 35 of the Act, who would be able to access
the information as mentioned in sub-regulation (5), as required, in unredacted form in terms of
Regulation 37 of these regulations: 

Provided that the Commission, while setting up a Confidentiality Ring, may decide the extent of
information to be made accessible, as well as the parties and their members to be included, in
the Confidentiality Ring, as deemed appropriate, for the purpose: Provided further that the
documents/ material mentioned in proviso to sub-regulation (5) which have been relied upon in
the confidential version of the report of the Director General, shall be made accessible to the
members of the Confidentiality Ring.

Read more at: https://taxguru.in/corporate-law/competition-commission-india-general-

amendment-regulations-2022.html
Copyright © Taxguru.in

https://www.barandbench.com/columns/confidentiality-and-ring-fencing-pitfalls-the-
competition-commission-of-india-must-avoid

In April 2021, the Competition Commission of India introduced

the Competition Commission of India (General) Amendment
Regulations, 2021, whereby Regulation 35 of the Competition
Commission of India (General) Regulations, 2009 was sought to be
modified.

 However, such measures should not dissuade from the fact that
protection of confidential information plays a pivotal role in any
investigation undertaken by the Commission. It is pertinent to note
that the Commission has extensive access to sensitive information
of the enterprise under investigation and this makes it necessary for
any confidential information obtained to be given due protection.

Therefore, a key challenge before the Commission in the face of the

introduction of Confidentiality Rings would be to balance the need
to protect confidential information of the parties vis-à-vis the need
to have a transparent and fair investigation.

Ergo, it is imperative for the Commission to put in place necessary

checks and balances to ensure that commercially sensitive
information is not disseminated to the public at large, and that the
Confidentiality Ring does not become a tool for parties with mala
fide intent to extract the disclosing parties’ confidential information.

However, the provisions of Section 57 of the Competition Act cast

an obligation on the Commission to maintain confidentiality over
information disclosed during its proceedings. Therefore,
Confidentiality Rings are to be treated as an exception to the legal
duty on the Commission to maintain confidentiality in its
proceedings.

Owing to the potential misuse of Confidentiality Rings, the EC had the

foresight to set out clear grounds for their establishment in any given case.
For instance, as per EC, disclosure of confidential information (including
through confidentiality rings) is only allowed when: 
(i) such disclosure is necessary to prove an infringement, or 
(ii) safeguard the rights of defence of the parties.
Additionally, how parties get the opportunity to set up a
Confidentiality Ring must be consistent with the procedure followed
in various other jurisdictions. For instance, in the EC, the relevant
guidance note states that the DG Competition may decide to
propose a Confidentiality Ring, either on its own motion or upon a
request from a Statement of Objections (SO) addressee. This means
that an SO addressee or information provider may propose that the
DG forms a Confidentiality Ring, but the DG has the discretion to
accept or reject the proposal.
Even the International Competition Network's best practices suggest that the disclosing party
must be afforded a right to express its views on such disclosure of confidential information.
This would mitigate the risk of certain parties getting involved in proceedings only to gain
access to confidential information of the other party. Therefore, providing a party with the
right to object to setting up of a Confidentiality Ring will ensure that the Commission takes a
more informed decision in any given case.

https://indiacorplaw.in/2021/08/confidentiality-rings-under-competition-law-need-
for-ironing-out-wrinkles.html

Pursuant to this objective, the principle of confidentiality, which also found mention in the
erstwhile Monopolies and Restrictive Trade Practices Act, 1969, has been enshrined in the
Competition Act, 2002 (the ‘Act’). However, this statutory protection is occasionally at
loggerheads with the equally important right of the other party to be afforded access to
certain information in order to effectively prepare its defence. Thus arises the challenge for
the fair market regulator to strike the right balance between the two often conflicting right

The idea of setting up confidentiality rings is not completely novel to this draft regulation and
has previously been discussed in a few instances, one such instance being the TLM Ericsson
v Xiaomi Technology case, wherein the Delhi High Court ordered for instituting a
confidentiality ring comprising a specified number of lawyers and expert witnesses. But
institutionalizing such a mechanism also engenders the possibility of misuse at the hands of
parties solely intending to gain access to rival confidential data, which would compromise
with the latter’s right to confidentiality.

Confidentiality rings could very well help the regulator mitigate protracted litigation, but it
could pose new challenges in striking a balance between principles of natural justice and
confidentiality. The CCI should be wary of the available avenues within the draft regulations
that are vulnerable to exploitation by parties.
Regulation 2(6) of the draft regulations vests discretionary powers on the CCI to set up
confidentiality rings. However, the specific grounds that can be invoked to trigger the
formation of these rings have not been delineated. This can lead to potential difficulties in the
future when such confidential rings are employed in practice. The draft regulations are also
silent as to whether the power to constitute confidential rings will be restricted to the CCI. If
the regulator affords parties the power to make a reasoned application for setting up a
confidentiality ring, it should be made explicit under the envisioned scheme. The authors feel
that involving the parties will draw more sanctity to the process and will also help in retaining
the confidence of the parties.
 Mature regulators like the European Commission have set out explicit grounds to invoke the
formation of confidentiality rings. The European Commission permits disclosure through
confidentiality rings only when such disclosure is instrumental in proving infringement or
safeguarding the rights of defence of the parties

However, the ultimate discretion to accept or reject the proposal put forth by the informant
rests on the DG. Hence, it is important for India to assimilate practices from mature
jurisdictions to successfully employ confidentiality rings.

Providing disclosing parties an opportunity to object the formation of a confidentiality ring

and securing consent from both parties can enable the CCI to appraise the situation
effectively. This will aid the CCI in deciding whether a confidential ring is required for a
particular case. The CCI should ideally create a template for undertakings and should also
explicitly mention the nature of penal consequences and against whom claims of
compensation will lie in case of aberrations.

urther, the competition watchdog proposed a tweak to the regulations to put the onus of justifying claims for confidentiality
on the parties through self-certification. 

This would include an undertaking from a company secretary or authorised officer of the firm to state the extent to which the
information is known to outside public, measures taken to guard the secrecy of the information and the ease or difficulty
with which the information could be acquired or duplicated. 
Additionally, representatives of the confidentiality ring would be liable to penal action under the Competition Act, for breach
of undertakings or submitting incorrect information while claiming confidentiality on self-certification basis, the CCI said. 

“Up until now, one could ask for inspection of records only post the filing of the DGs report before the commission but the
draft regulations say that a similar confidentiality ring may be set up at the level of the DG,” Nayar said, adding, “This could
lead to ambiguities regarding when one could inspect the confidential records and may need to be made more explicit in the
amended regulations.”  

Read more at:

https://economictimes.indiatimes.com/news/economy/policy/cci-proposes-confidentiality-rings-in-draft-
confidentiality-regulations/articleshow/82053299.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

https://elplaw.in/cci-updates-its-confidentiality-regime/ - Brief of the new

regulations

c. Setting up of Confidentiality Rings: If considered necessary, the CCI may set up a

confidentiality ring comprising of authorized representatives of parties, who alone will
have access to the confidential information in an ongoing matter. Following are the key
aspects of the confidentiality ring –
  Members of the confidentiality ring will have access to all confidential documents
and material relied upon by the DG in the confidential version of the DG Report,
including confidential information in the nature of personal information.
 The CCI while setting up the confidentiality ring, may decide the extent to which
confidential information may be made accessible and also the members to be
included.
 Access to confidential information shall be provided to members of the
confidentiality ring on submission of an undertaking by such members that the
information will not be shared outside of the ring and will be destroyed upon
culmination of the proceedings.
 The Informant shall ordinarily not be a part of the confidentiality ring unless the
CCI considers their inclusion to be necessary.
 The CCI may initiate penal action against members of the confidentiality ring for
breach of the confidentiality obligations.

https://www.irccl.in/post/confidentiality-rings-under-the-competition-law-taking-a-
cue-from-the-eu

This was witnessed in the recent case of Meru Travel Solutions Private Limited v. Uber India

Systems Private
Limited, wherein Uber filed applications seekingconfidential treatment of several submissions 
filed with the DG. After the DG rejected the aforesaid request for confidential treatment, Ube
r challenged the confidentiality order passed by the DG before the CCI. The CCI allowed the 
requests made and directed the DG to revise the non-confidential version of the investigation 
report. Such a mechanism results in a prolonged investigation, hampering the timely disposal 
of the case.

On multiple occasions, the Indian courts have accepted an application for the setting up of a 
CR. For instance, the Delhi High Court, in cases involving Telefonaktiebolaget v. Xiaomi
Technology
ordered the creation of CR comprising of a specified number of lawyers. Similarly, in order t
o devisea procedure to ensure the confidentiality of the information, documents, and database
, the Delhi High Court in Mvf Aps and Others v. M Sivasamy and
Others limited the number of people who can have access to confidential information.

Furthermore, perhaps the most important aspect of CR is the nature and magnitude of penalty 
on lawyers upon sharing information with others as it is expected to deter lawyers from com
mitting disclosure. In the EU, such disclosure invites disciplinary action by the bar associatio
n against the concerned lawyer(s). In India, in case of disclosure, the amendment provides for 
the imposition of penalty as per the provisions of the Act. It appears that for offences related t
o information as covered under Chapter VI of the
Act, the penalty will be in the nature of the imposition of a fine. Moreover, each provision set
s an upper limit on the amount of fine that can be imposed; thus, a lawyer can collude with its 
client and share information where the benefit of such sharing might outstrip the amount of p
enalty.

https://www.mondaq.com/india/cartels-monopolies/1148418/recommendations-
on-the-review-of-extant-confidentiality-regime-under-regulation-35-of-the-
competition-commission-of-india-general-regulations-2009

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. 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).
10. 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.

11. 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.
12. Further, the Competition Law Review Committee ("CLRC"), instituted in 2019,
in its report notes that

".Regulation 35 sets out the factors that the CCI or the DG may consider while arriving at a
decision regarding confidentiality. Notably, the CCI or the DG may reject the request and, in
such cases, parties will be informed about the intention of CCI or DG."6

13. 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.

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.

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.

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 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.
Further, liability imposed on CR members for breach of
confidentiality undertakings seems to be dual pronged. While the CCI
has stated that members breaching the CR undertaking will be
proceeded against “as per the provisions of the Act”, it also gives a
right to the disclosing party to avail suitable remedies “as per law”.
Accordingly, once a breach of CR is established, a member may face
two parallel proceedings, (i) one under the scheme of the Act; and
(ii) another civil proceeding for compensation / damages. 
The proviso to the amended Regulation 35(7) also states that
“representatives” of parties shall be held liable for breach of
undertakings. However, a CR arrangement is strictly inter se the CCI
and the parties, and the definition of “party” under the existing CCI
(General) Regulations, 2009 does not include “representatives”.
[4] Thus, it appears that the Amendment is drafted specifically to
expand the scope of the master regulation. 
Further, legal representatives of parties are already bound to
maintain client confidentiality under the Indian Evidence Act, 1872
and the Advocates Act, 1961. Therefore, adding further pecuniary
onus in this regard may cause friction between various legal
frameworks.

A concerning change suggested by the Draft Amendments, however, is that parties’

representatives (who form a part of confidentiality rings) will become liable for penal
actions for (1) a breach of undertaking given with respect to the use of confidential
information in a confidentiality ring; and (2) submission of incorrect information
while claiming confidentiality on self-certification basis. With this change, counsel or
legal representatives could potentially be penalised under the Act. The Advocates Act
1961 is a dedicated legislation that regulates professional misconduct by counsel and
legal representatives in India. Providing penalties for legal counsel in the Act or
General Regulations could lead to unprecedented hardship to external counsels that
are not strictly parties to any dispute before the CCI. This issue is exacerbated by the
fact that there is no provision in the Act to appeal such CCI decisions, hence proper
harmonisation between conflicting laws must be considered to mitigate any
unforeseen complications. Further, the Amendment Bill dated 3 December 2021 of the
Advocate’s Act 1961 on defining ‘misconduct’ of an advocate has been placed before
the Rajya Sabha (the Upper House of Parliament in India). Once this bill is approved
by both the Houses of the Parliament and assented to by the President, it becomes all
the more important to harmonise the Act and the amended Advocate’s Act