Proposed amendments to the Competition Commission of India (General) Regulations, 2009
Axiom5’s detailed comments on the draft amendments to the CCI (General) Regulations, 2009, are available here.
I. Context
On 6 June 2024, the Competition Commission of India (CCI) published its proposed amendments to the General Regulations, 2009 (Proposed Amendments). The Proposed Amendments aim to align the existing General Regulations with the provisions of the recently enacted Competition (Amendment) Act, 2023. They also address procedural issues to streamline and enhance the efficiency of the regulatory framework.
The CCI is inviting comments on the draft amendments until 8 July 2024. In this article, we identify key features of the Draft General Regulations. Additionally, we present a comparative analysis of the current General Regulations and the Proposed Amendments, along with our comments, here.
II. Key changes proposed in the amendments
1. Change in definition of ‘Expert’, ‘Interlocutory Application’ and introduction of ‘Miscellaneous Application’
The Proposed Amendments have expanded the definition of ‘Expert’ to now include individuals engaged by a party to offer opinions on any matter pertaining to a case. [Reg 2(f)]
The definition of ‘Interlocutory Application’ is proposed to be widened to include any application filed before the CCI in a case instituted under Section 19 of the Competition Act, 2002 (Act), except for the submissions made in compliance of the CCI’s order or direction. [Reg 2(fa)]
The amendments have proposed to introduce ‘Miscellaneous Application’, which shall cover any application filed before the CCI that is not an Interlocutory Application. [Reg 2(h)]
Axiom5 comment: The Proposed Amendments regarding the definitions of ‘Interlocutory Application’, ‘Miscellaneous Application' and ‘other submissions made in compliance of any order or direction of the Commission’ require further clarification.
To enhance clarity, it is suggested that the CCI explicitly differentiates between Interlocutory and Miscellaneous Applications based on specific criteria, such as timing of the application, purpose and any specific exclusions that may apply to either type of application.
2. Counsels may now certify translated copies
The amendments propose to modify the requirements for document translation, allowing legal counsels to certify the accuracy of the translation. [Reg 7]
Axiom5 comment: This Proposed Amendment is a positive development. Allowing counsels to certify translated documents will also streamline the submission process, enhancing efficiency for all parties involved.
3. Additional requirements in relation to information or reference
Information/reference filed with the CCI are proposed to now also require:
Date of cause of action. [Reg 10]
Attachment of an affidavit with the information, reference, additional documents and further submissions. [Reg 10]
Details whether the facts and issues in the current information or reference are same as or similar to those previously decided by the CCI, and include the relevant details of such decisions. [Reg 10]
Axiom5 comment: The CCI seeks to discontinue the practice of self-certification and replace it with a requirement for an affidavit.
The obligation to provide affidavits within tight deadlines can be burdensome for some parties, particularly foreign nationals, as obtaining notarization or apostille from a foreign jurisdiction can be time-consuming and challenging to fulfil within the specified timeframe.
4. Endorsement of submissions and filings by authorised employees
The amendments propose to expand the list of persons who can sign an information/reference/reply, to now include the following:
For a company: the Managing Director, any other Director or any employee duly authorized.
For an association/society/similar body: the President or the Secretary or any employee or the person so authorised.
For a partnership firm: A partner or any employee duly authorized.
For a co-operative society/local authority: the chief executive officer or any employee.
[Reg 11]
5. Additional requirement while authorising a representative to appear
The Proposed Amendments require an authorization letter or vakalatnama by the parties while authorising representatives to appear on their behalf. [Reg 46]
Axiom5 comment: This is a positive change. However, parties may authorise multiple counsels to represent them. However, if multiple vakalatnamas (authorizations) are filed concurrently, each should be officially recorded with the CCI to ensure transparency and avoid any confusion regarding representation.
6. Opportunity for cross-examination if the Director General relies on oral evidence
In situations where the parties have submitted oral evidence, the amendments propose that the CCI or the Director General (DG) may grant an opportunity to the other party to cross examine the person giving the evidence. [Reg 41]
7. Change in timelines
The Proposed Amendments have increased the time period available for the DG to submit its investigation report, from 60 to 90 days. Moreover, it is proposed that the DG submits the case record along with the investigation report. [Reg 20]
Additionally, the Proposed Amendments require interim orders to be dealt with expeditiously, removing the previous deadline of ninety days. [Reg 31]
Further, it is proposed that the timeframe for the parties to submit their comments to the notice be reduced from seven to four days. [Reg 33]
8. Other notable changes
Some of the other proposed changes include:
The Secretary shall be able to establish formal relationships with any statutory authority or government department, subject to the prior approval of the CCI. [Reg 14]
In situations of imposition of penalty on persons under Section 48 of the Act, delivery of the investigation report, supplementary report, or show cause notice under Regulation 21(8) is proposed to be considered equivalent to issuing a show cause notice under Regulation 48(1). [Reg 48]
The CCI shall be able to appoint monitoring agencies to oversee the implementation of the orders passed by the CCI. [Reg 52A]