WHAT HAS HAPPENED?
TIMELINE FOR OFFERING SETTLEMENTS
CONTENTS OF A SETTLEMENT APPLICATION
IMPACT OF OFFERING SETTLEMENTS
C&M PERSPECTIVE
While the CCI has incorporated various changes to the draft Settlement Regulations based on the comments it received from 41 stakeholders, there still remain certain issues which if considered by the CCI would have increased the attractiveness of these regimes in India. These include:
Absence of transitional provisions: The Settlement Regulations do not contain any transitional provisions for settlements to be offered in existing/ongoing cases where the 45 + 30-day period has expired after the receipt of the DG Report. In its accompanying response to stakeholder comments, the CCI, has clarified that it does not consider it “appropriate” to extend settlement to these cases as it “would necessitate prescription of separate time limits for cases at different stages of inquiry process, which is not desirable”.
Onerous waivers and undertakings imposed on an applicant: The Settlement Regulations make the undertakings and waivers detailed in Schedule I as a pre-condition for filing a settlement application. As per Schedule I, a settlement applicant is expected to waive its right of filing an appeal before the NCLAT or any other court, potentially, even if its application is rejected by the CCI and admit findings of facts and law. The broad language of the undertakings and uncertainty of impact on defenses of the parties where settlements
fail may deter many enterprises from filing settlement applications in the first place.
Insufficient timelines for filing settlement application: A timeline of 45 days (extendable to 30 days by the CCI) to file a settlement application may not provide sufficient time for an enterprise to consider whether it can offer settlements and what form of settlements can best address the CCI’s concerns. An extension of time would be beneficial not only in fresh cases in which a prima facie order has been passed, but also for existing cases where investigation is pending.
For details on the draft versions of the Competition Commission of India (Commitment) Regulations, 2023, kindly refer to our LinkedIn alert available here. In case of any feedback, suggestions, or queries, please reach out to the C&M team on competitionlaw@chandhiok.com
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