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Explore the pragmatic sharing of information by the New Zealand Commerce Commission with overseas agencies, both informally and formally, discussing benefits, challenges, cooperative opportunities, waivers, formal agreements, and third-party damages.
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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 Opportunities for improvement
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
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
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
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
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
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