ICN guidelines on engaging parties in investigations

The International Competition Network (ICN) recently concluded its 18th Annual Conference in Cartagena, Colombia. The ICN introduced the Recommended Practices for Investigative Process (RPIP), a set of procedural guidelines drafted by the members to enable a fair and effective investigation procedure. The themes of the guidelines are effective competition agency tools, transparency about agency policies and standards, transparency during an investigation, engagement during an investigation, internal agency safeguards, and confidentiality protections and legal privileges. Transparency, engagement and confidentiality are crucial inter-related principles that assist in establishing accountable, fair and effective competition enforcement. The RPIP balances the interests of the investigation agency and the parties to the investigation with these principles.

The RPIP recognizes engagement between the investigation agency and the parties under investigation as a “basic attribute of sound and effective competition enforcement”. The importance of this practice is highlighted in the RPIP – “Investigations benefit from the open discussion of investigative theories with the parties and the explanation of competition concerns at key stages, allowing both sides to identify, consider, and test allegations and theories … Successful engagement depends in large part on the cooperation between the agency and the parties”. The RPIP recommends representation of views and arguments of parties through qualified legal counsel, employees and outside experts.

In India, for antitrust cases, investigations are carried out by the Office of Director General (DG). The procedure for an investigation, including the powers and duties of the DG, are set out in the Competition Act, 2002, and supplemented by the Competition Commission of India (General) Regulations, 2009. There are no guidelines for effective engagement between the investigation authority and the parties.

Karan Chandhiok is a partner and Shruthi Rao is an associate at Chandhiok & Mahajan.

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