Memorandum of Understanding between the Commissioner of Competition, Competition Bureau Canada and the Competition Commission of India on cooperation in the application of competition laws

The Commissioner of Competition, Competition Bureau Canada and the Competition Commission of India ("CCI") hereinafter referred to as the "Participants";

Desiring to enhance the effective enforcement of their competition laws by creating a framework that provides for enforcement cooperation;

Recognizing the benefit of technical cooperation, in order to enhance an environment in which the sound and effective enforcement of competition law supports the efficient operation of markets and economic welfare of the citizens of their respective countries;

Recognizing that the development and maintenance of a well-functioning system for effectively implementing competition law and policy not only involves the Participants, but also other government agencies, and the legal, business and academic sectors;

Recognizing that establishing good communications on competition law and policy will contribute to improving and strengthening the relationship between Canada and India; and

Recognizing that it is in their common interest to minimize any potentially adverse effects of their enforcement activities on each other in the application of their competition laws;

Have reached the following understanding:

Purpose and definitions

    1. The purpose of this Memorandum of Understanding ("MOU") is to enhance the partnership of the Participants by providing a framework for their cooperation in the fields of competition law and policy, including enforcement.
    2. For the purpose of this MOU:

      "competition law(s)" mean:

      1. For the Commissioner of Competition, Competition Bureau Canada, the legislation and regulations as set out in Annex A to this MOU; and
      2. For the CCI, the legislation and regulations as set out in Annex B to this MOU;

      as well as any amendments thereto and such other laws or regulations as the Participants may jointly agree in writing to be a "competition law" for the purposes of this MOU;

      "enforcement activity(ies)" means any investigation or proceeding conducted by a Participant in relation to the competition law it administers or enforces; and

      "territory" means the territory in which a Participant has jurisdiction.

Cooperation

  1. The Participants will, where appropriate and practicable, carry out cooperation, in accordance with their common interests, by:
    1. Keeping each other informed of significant developments in their respective competition laws, enforcement and policy;
    2. Sharing competition law enforcement and policy experience;
    3. Working together in technical cooperation activities related to their competition laws, enforcement and policy, such as: (A) participating in training courses on competition law and policy organized or sponsored by one another; and (B) providing assistance in promoting an understanding of competition policy among supporting institutions such as government agencies, the business community, bar associations and academic institutions;
    4. Subject to paragraphs 9-12, cooperating and coordinating their enforcement activities when investigating the same or related competition matters; and
    5. Subject to paragraphs 9-12, notifying the other Participant of enforcement activities that may affect the other Participant’s interests in the application of its competition law, including those that:
      1. are relevant to the enforcement activities of the other Participant;
      2. involve any conduct or transaction, other than mergers or acquisitions, carried out in whole or in part in the other Participant’s territory, that may be subject to penalties or other remedies under the competition law administered and enforced by the other Participant, except where such conduct or transaction is insubstantial;
      3. involve mergers or acquisitions in which one or more of the parties to the transaction, or an entity controlling one or more of the parties to the transaction, is an entity incorporated or organized under the laws of the other Participant;
      4. involve penalties or other remedies that expressly require or prohibit conduct in the other Participant’s territory or are otherwise directed at conduct in that territory; and
      5. involve the seeking of information located in the other Participant’s territory, whether by personal visit by officials of a Participant or otherwise, except with respect to telephone contacts with a person in the other Participant’s territory where that person is not the subject of investigation and the contact seeks only an oral response on a voluntary basis. Such visits will be subject to the consent of the notified Participant.
  2. The Participants will ensure that the notifications include the nature of the enforcement activity and the competition law provisions concerned, and are sufficiently detailed to enable the notified Participant to make an initial evaluation of the effect of the enforcement activity on its interests in the application of its competition law.
  3. The Participants plan to evaluate the effectiveness of their cooperation under this MOU on a regular basis to ensure that their expectations are being met.

Work plan

  1. The Participants will develop a work plan of cooperative activities, which may be revised by mutual consent. The Participants will review the need for a work plan at regular intervals, beginning three years after the coming into effect of this MOU.

Communications

  1. The Participants will communicate directly with each other under this MOU through a designated contact point that each Participant will notify in writing to the other.
  2. The Participants may carry out their communications by telephone, electronic mail, video conference, or in person, as appropriate. The Participants understand that the working language will be English.
  3. The Participants understand that their Officials may meet, as appropriate, to exchange information on their current and contemplated competition policy and enforcement activities and priorities.

Existing laws and confidentialityof information

  1. Nothing in this MOU will require a Participant to take any action, or to refrain from acting, in a manner inconsistent with existing laws, or will require any change in the laws of Canada or India.
  2. Despite any other provision in this MOU, the Participants will not communicate information to the other if such communication is prohibited by the laws governing the Participant possessing the information or would be incompatible with that Participant’s 'interest in the application of its competition law.
  3. The Participants understand that the degree to which one Participant communicates information to the other under this MOU may be subject to, and dependent upon, the acceptability of the assurances given by the other Participant with respect to confidentiality and with respect to the purposes for which the information will be used.
  4. Unless they decide otherwise, the Participants will, consistent with their laws, maintain the confidentiality of any information communicated to it in confidence. Each Participant will oppose, to the fullest extent possible, any request by a third party for communication of such confidential information, unless the Participant providing the confidential information consents in writing to its communication.

Consultations

  1. Where one Participant informs the other that a specific enforcement activity by the second Participant may affect the informing Participant’s interests in the application of its competition law, the second Participant will endeavour to provide timely notice of significant developments relating to those interests and an opportunity to provide input regarding any proposed penalty or other remedy.

Interpretation and implementation

  1. Any differences arising out of the interpretation or implementation of this MOU will be settled amicably through consultation and negotiation between the Participants.

Legal effect

  1. This MOU is not legally binding.

Final provisions

    1. This MOU will come into effect on the date of the signature of its English version by the Participants.
    2. The Participants may amend this MOU at any time by mutual written consent.
    3. Either Participant may terminate this MOU by giving a 90 day written notice to the other Participant. The termination of this MOU is not intended to affect the implementation of any projects already in progress under it.

Signed in duplicate at New Delhi on December 1st in the English language. The Participants will sign the French and Hindi versions within 60 days, all versions being equally valid.

For the Commissioner of Competition,
Competition Bureau Canada
For the Competition Commission of India

John Pecman,
Commissioner
Ashok Chawla,
Chairman

Annex A

"Competition law(s)" administered and enforced by the Commissioner of Competition, Competition Bureau Canada:

  1. Competition Act, R.S. C. 1985, c. C-34, except sections 52 through 60 and Part VII.1; and
  2. Notifiable Transactions Regulations, S.O.R. 87-348.

Annex B

"Competition law(s)" administered and enforced by the CCI:

  1. The Competition Act, 2002, as amended from time to time

    and

  2. Rules and Regulations framed under the Competition Act, 2002
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