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Information sharing – pragmatic perspectives from the NZCC

Information sharing – pragmatic perspectives from the NZCC. ICN Cartel Workshop October 2013 Katie Rusbatch. Introduction . How the New Zealand Commerce Commission shares information with overseas agencies – informally and formally The benefits and challenges of cooperation

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Information sharing – pragmatic perspectives from the NZCC

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  1. Information sharing – pragmatic perspectives from the NZCC ICN Cartel Workshop October 2013 Katie Rusbatch

  2. Introduction How the New Zealand Commerce Commission shares information with overseas agencies – informally and formally The benefits and challenges of cooperation Opportunities for improvement

  3. How we cooperate ̶ informal cooperation Cooperation is primarily informal, includes: • 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

  4. 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

  5. Waivers in immunity and cooperation agreements 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

  6. Formal cooperation 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

  7. Formal cooperation 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

  8. Third party damages 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

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