Our article has been published by the India Business Law Journal
here.
Commercially sensitive information (CSI) has long been important
in antitrust proceedings. Competitors' exchange of or access to
CSI, such as pricing strategies, production plans, customer data or
future business objectives, increases transparency and reduces
competitive uncertainty. This, in turn, enables firms to compete
less vigorously and undermines independent decision-making. For
this reason, the exchange of CSI between competitors is regarded by
antitrust authorities, including the Competition Commission of
India (CCI), as collusion.
But access to CSI began to gain prominence in Indian merger
control with the CCI's 2020 order in ChrysCapital/Intas. ChrysCapital was permitted
to acquire a minority stake in Intas, if it relinquished its board
seat and rights in a rival portfolio company. It also had to
establish firewalls to prevent CSI exchange. ChrysCapital held less
than 10%
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