1. 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

2. 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.

3. 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

4. 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

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

6. ADMINISTRATIVE PROCEDURE
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

7. 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.

8. 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.

9. 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

10. 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).

11. 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.  

12. 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

13. 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.

14. 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?

15.
Thank you