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The Competition Commission of India (CCI) has introduced an amendment to its regulations, hereby allowing advocates to accompany parties summoned during an investigation by the Director General (DG).
The Competition Commission of India (General) Amendment Regulations, 2018 envision the insertion of a new Section 46A to the 2009 Regulations, which allow advocates to be present at DG investigations, albeit with a few riders.
The restrictions on the role of the advocate are:
a) The Advocate shall not be allowed to accompany such person, unless a request in writing accompanied by a Vakalatnama or Power of Attorney is duly submitted to the DG, prior to commencement of the proceedings.
b) The Advocate shall not sit in front of the person so summoned.
c) The Advocate shall not be at a hearing distance and shall not interact, consult, confer or in any manner communicate with the person, during his examination on oath.
Quite significantly, the DG has the power to make a complaint to the CCI, if he finds that the advocate has indulged in “misconduct”. As per the amendment, the term “misconduct” shall have the same meaning as conveyed in Regulation 46, where it is defined as follows:
“For the purpose of this regulation, word “misconduct” shall include causing prejudice to or interfering with or attempting to interfere with, the due process of any proceeding or obstructing or attempting to obstruct, the compliance or execution of any order or direction of the Commission, in any manner, or using defamatory language or behaving defiantly or attempting to undermine or undermining the prestige of any Member or Officer of the Commission in any manner whatsoever.”
Should the Commission find merit in the DG’s complaint, it has the power to debar advocates from appearing in proceedings before it, and from proceedings involving the DG as well, “in future or till such time as the Commission deems necessary”.
Further, the CCI may direct its Secretary to forward a complaint citing misconduct on the part of the advocate to the State Bar Council of which he is a member.
This year, the Delhi High Court in Competition Commission of India v. Oriental Rubber Industries Limited, had held that parties can be accompanied by advocates during DG investigations, with a few restrictions.
It seems that the CCI has taken a leaf out of Justice S Ravindra Bhat’s judgment in that case. While noting concerns put forth by the CCI regarding the likelihood of an advocate causing hindrance to the DG investigation, the High Court held the following:
“In that regard, the Commission or the DG, as the case may be, lay prescribe, in the order, during the course of proceeding, when a request for representation by counsel is made, an appropriate procedure to be followed during such investigation, where the counsel may be allowed to accompany the party, but not continuously confer with him when the DG is taking his or her testimony or asking questions.
Therefore, while the party is allowed his right to be accompanied by an advocate, the DG’s investigations are not unnecessarily hindered. The Commission having regard to the appropriate best practices across jurisdictions in antitrust matters may formulate such procedures and incorporate them in regulations…Apart from non-verbal communication, the counsel might restrict the element of surprise that is essential when collecting such evidence. Therefore, the DG shall ensure that the counsel does not sit in front of the witness; but is some distance away and the witness should be not able to confer, or consult her or him…”
Read the amendment: