www.ccs.gov.sg ICN Cartel Working Group SG-1 Webinar: Disclosure/Discovery in Private Actions – Perspectives & Anticipations from Singapore Presenter: Edmund Lam, 2 Deputy Director (Legal) 14 September 2016

COMPETITION LAW IN SINGAPORE Generic Competition Law prohibiting Anti-Competitive Agreements came into operation on 2006 Singapore is a common law country that inherited the English legal traditions including the discovery processes. However, Competition Law enforcement in Singapore is an administrative system Competition Law infringement only results in civil liabilities. Competition Commission of Singapore is not under any obligation to disclose information to competition agencies or courts of another jurisdiction. No private follow on action has yet been commenced. www.ccs.gov.sg

LENIENCY REGIME Leniency Programme since 2006 – an important tool in detecting cartels. 3 successful leniency cases - Electrical Works Case, Ball Bearings Case & Freight Forwarders Identity of Leniency applicant disclosed in Proposed Infringement Decision Enforcement tool complimented by Secret Complaint & Reward Scheme which is relatively more sensitive www.ccs.gov.sg

Secret complainant and Whistleblower program Secret complainants Provides persons with an additional layer of protection regarding their identities Reward seekers under whistleblower scheme also fall under the category of secret complainants Whistleblower or Reward scheme Launched in 2009, revamped in December 2013 Any person coming forward with first hand information on cartel cases eligible for a reward – no payments if an investigation is already on-going Initiator of cartel or directly involved will not be eligible Reward amount at CCS discretion up to S$120,000 www.ccs.gov.sg

INVESTIGATION PROCEDURE www.ccs.gov.sg Initiation & Preliminary Enquiry Investigation, Exercise of Formal Powers: Section 63, 64 & 65 Interviews & Information Gathering Evidence Review & Assessment of Facts

ADMINISTRATIVE PROCEDURE www.ccs.gov.sg Final Opportunity Ensure Confidentiality Discovery Drafting of Proposed Infringement Decision & Commission Approval File Inspection, Written and Oral Representations & Commission Approval Issuance of Infringement Decision Right to Commence Follow on Private Actions Issuance of Proposed Infringement Decision

RIGHTS OF DEFENCE After the issuance of a Proposed Infringement Decision, the addressees will be given a reasonable opportunity to inspect CCS’s file, subject to certain restrictions, and make representations to CCS on the proposed finding of liability and quantum of the financial penalty. The disclosed information to an addressee may also be used by it in an appeal against CCS’s Infringement Decision. www.ccs.gov.sg

BALANCING ACT CCS may withhold a document from the file inspection process if it contains confidential information: CCS has a duty to preserve secrecy unless the information is allowed to be disclosed under certain exceptions (e.g. required by a court); and Confidential information include commercial information, a person’s private affairs and information whose disclosure would be contrary to the public interest. www.ccs.gov.sg

BALANCING ACT In practice, if such information forms an integral part of the case where disclosure of the information is vital for the addressee’s “rights of defence”, CCS may: Provide ranges e.g. market share, financial information; Provide a list of third-parties contacted but otherwise anonymise the information such that the identity of the individual is not revealed; and Use of confidentiality rings www.ccs.gov.sg

BALANCING ACT CCS may also withhold a document from the file inspection process if it is an internal document. Internal documents include documents produced by CCS (e.g. oral proffers reduced in writing by CCS and internal deliberations) and by any person under a contract of retainer with the CCS (e.g. external expert).   www.ccs.gov.sg

BALANCING ACT Documents provided by leniency applicants are placed in the file. Leniency submissions in documentary form (which are not records of oral submissions) will be accessible by the addressees. However, access to these will be limited: Only to be viewed at CCS’s premises; and No mechanical copying will be allowed of leniency submissions in documentary form.   www.ccs.gov.sg

BALANCING ACT Information which may assist the addressee Type of information Whether to disclose Information which may assist the addressee Must be disclosed, but redacted as appropriate (bearing in mind rights of defence) for confidentiality Information relied on by CCS in the PID Internal documents Must not be disclosed Information which strengthens CCS’s decision but is not relied on in the PID Must be disclosed, but redacted as appropriate (bearing in mind rights of defence) for confidentiality. Information which weakens the addressee’s potential defence but not relied on in the PID   www.ccs.gov.sg

FOLLOW ON PRIVATE ACTIONS Parties suffering loss or damage directly arising from competition law infringements are entitled to commence a civil action against the addressee. Such rights arise only after CCS has made a decision on the infringement and the conclusion of the appeal, if any (i.e. no standalone private actions). 2 year time bar. Court bound to accept the infringement decision as final and conclusive. www.ccs.gov.sg

FOLLOW ON PRIVATE ACTIONS Immunity/leniency applicants are not protected from private actions CCS already discloses substantial amounts of evidence in an Infringement Decision and allows access to file by providing electronic copies of documents in a CD form to addressees Private litigant can obtain such documents by way of discovery order against the addressee Query: How relevant are remaining confidential and internal documents in determining causal link and quantum of damages? www.ccs.gov.sg

www.ccs.gov.sg Thank you