Transcript Katie Rusbatch - 2013 ICN Cartel Workshop

Information sharing – pragmatic perspectives
from the NZCC
ICN Cartel Workshop
October 2013
Katie Rusbatch
Introduction
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How the New Zealand Commerce Commission shares
information with overseas agencies – informally and formally
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The benefits and challenges of cooperation
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Opportunities for improvement
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How we cooperate ̶ informal
cooperation
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Cooperation is primarily informal, includes:
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Sharing and use of information regarding timing, scope and
progress of investigations
Leads on witnesses
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
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Informal cooperation
• 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
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Waivers in immunity and cooperation
agreements
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How does informal information sharing happen?
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Waivers in leniency and cooperation agreements
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BUT waivers are not the answer to everything:
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Terms may differ between jurisdictions
Different immunity and cooperating parties
ICN’s role – we support further development
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Formal cooperation
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Challenge: sharing information that can be used as evidence
in court proceedings
What NZCC can do to assist? Commerce (International Cooperation and Fees) Amendment Act
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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
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Formal cooperation
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Obtaining information from overseas agencies
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Waivers
Sharing compulsorily acquired information, eg section 155AAA of
the Competition and Consumer Act 2010 in Australia
More can be done
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Third party damages
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Vexed issue in the anti-trust sphere
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Balancing exercise
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Investigative effectiveness
Confidentiality
Leniency and cooperation applicants
Access via Courts and/or Official Information Act 1982
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