ICN Cartel Workshop October 2013

Katie Rusbatch

Information sharing – pragmatic perspectives from the NZCC

• How the New Zealand Commerce Commission shares information with overseas agencies – informally and formally

• The benefits and challenges of cooperation

• Opportunities for improvement

Introduction

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• Cooperation is primarily informal, includes:o Sharing and use of information regarding timing, scope and

progress of investigations o Leads on witnesseso Framing a case, eg theory of harm, choice of pleading, market

definition, likely defences or challenges

• NZCC small agency, but size no barrier to sharing information

How we cooperate / informal cooperation

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• Extremely valuable• Does not involve exchange of actual documents or evidence• Alerts us to conduct that may be relevant to New Zealand• Assists us to complete our investigations more efficiently and

effectively• Assists with evidence gathering

Informal cooperation

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• How does informal information sharing happen?

• Waivers in leniency and cooperation agreements

• BUT waivers are not the answer to everything:• Terms may differ between jurisdictions• Different immunity and cooperating parties

• ICN’s role – we support further development

Waivers in immunity and cooperation agreements

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• Challenge: sharing information that can be used as evidence in court proceedings

• What NZCC can do to assist? Commerce (International Co-operation and Fees) Amendment Act

• Can provide investigative assistance and/or compulsorily acquired information to a recognised overseas agency

• Requires a formal cooperation agreement• Three conditions must be satisfied

• Mutual Assistance in Criminal Matters Act 1992

Formal cooperation

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• Obtaining information from overseas agencies

• Waivers• Sharing compulsorily acquired information, eg section 155AAA of

the Competition and Consumer Act 2010 in Australia

• More can be done

Formal cooperation

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• Vexed issue in the anti-trust sphere

• Balancing exercise• Investigative effectiveness • Confidentiality • Leniency and cooperation applicants

• Access via Courts and/or Official Information Act 1982

Third party damages

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