This week the New Zealand Commerce Commission (NZCC) signed a Multilateral Mutual Assistance and Cooperation Framework (Framework), with authorities in Australia, Canada, the United Kingdom and the United States, to enhance international cooperation on competition enforcement.1 The Framework enables signatories to cooperate more effectively on investigations, work and share experiences on joint projects and inter-agency training initiatives.
More specifically, this includes multilateral cooperation by:2
- exchanging information on the development of competition issues, policies and laws;
- exchanging experience on competition advocacy and outreach;
- providing inter-agency training;
- exchanging information and experiences on matters of mutual interest;
- collaborating on projects of mutual interest by establishing working groups;
- providing assistance and cooperation on investigations by:
- sharing public information and investigative information to the extent permitted by law or by waiver of confidentiality;
- coordinating investigative activities;
- facilitating voluntary witness interviews; and
- providing copies of publicly available records.
The Framework also includes a 'Model Agreement' that the authorities can use to establish cooperation arrangements focused on investigative assistance such as the provision of mutual assistance, sharing of confidential information and cross-border evidence gathering.3
Although similar in principle with existing cooperation instruments in place with a number of other jurisdictions (see here), and international forums such as the International Competition Network and the Organisation for Economic Cooperation and Development’s Competition Committee, the new Framework is unique. It develops a Model Agreement for signatories with a direct focus on effective information sharing that spans multiple jurisdictions.
Anna Rawlings, NZCC Chair, commented that the Framework would strengthen its relationships with other authorities and enhance its ability to identify conduct affecting New Zealand markets in an increasingly "digital and global economy."
What does this mean for information the NZCC obtains compulsorily?
The NZCC has powers to compel the production on information (for example, under section 98 of the Commerce Act), and in 2012 a regime was introduced whereby the NZCC could share compulsorily acquired information with another overseas regulator, without a waiver from the affected person, provided the NZCC has entered into a "cooperation arrangement" with that other regulator that covers certain specified matters.4 To date, the NZCC has entered into such cooperation arrangements with the Australian Competition and Consumer Commission (ACCC) and the Canadian Competition Bureau (CCB).
The new Framework does not itself meet the requirements of such cooperation arrangements to enable the exchange of compulsorily acquired information with the United Kingdom and United States regulators. However, it is a strong signal of a desire for greater coordination with these jurisdictions, so further cooperation arrangements between the NZCC and regulators in the United Kingdom and United States to allow that to occur should be expected.
What does this mean for you and your business?
The Framework means that the signatories are likely to cooperate more extensively and pursue assistance between one another during competition enforcement investigations. Businesses should be mindful of this when facing any information requests from the NZCC, including to ensure they understand the implications of providing information to the NZCC and how best to control the use and disclosure of that information.
For more information on how the new Framework or enhanced international cooperation on competition enforcement will affect your business, please get in touch with Troy Pilkington.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.