Indonesian Competition Commission introduces new case handling procedures

New Case Handling Procedures

Previously

Technology to assist in gathering evidence and conducting case hearings

The new procedures expressly permit the collation of evidence – including witness and expert statement and the issuance of ICC summons and notices, electronically. They also permit case proceedings to be facilitated via "electronic media" – including but not limited to visual teleconference and emails.

Under the previous procedures, there was no express reference to the use of technology to support case handling.

Evidence to be adduced during an investigation or in a case proceeding

The new procedure also clarifies the nature of five different forms of evidence that can be adduced in proceedings:

• witness evidence – the procedures clarifies that a witness can be anyone with direct or indirect knowledge of an alleged violation.
• expert statements – the procedures require experts have necessary certifications in accordance with their expertise for expert statements to be admissible during an investigation or in proceedings.
• letters and/or documents - the procedures clarify that the following are now admissible as evidence:
  
  - statements by unsworn witnesses;
  
  - affidavits signed by relevant experts or factual witnesses.
  
  
• any other documentary or other evidence (such as evidence of coordinated behaviour or patterns of conduct) which may be used to substantiate an allegation.
• defendant statements which contain an admission of guilt during the investigation stage.

Previously, the scope of admissible evidence was in some instances narrower - for example as regards witness evidence, acceptable witnesses were individuals with direct knowledge of relevant facts related to an alleged violation only. In other instances the previous position was less robust – for example, it was not expressly necessary to adduce evidence of an expert's professional or other certifications and credentials.

Expedited investigation procedures

Where an accused issues an admission of guilt in relation to an alleged violation or as otherwise approved by the ICC board, the ICC can administer an expedited investigation within only 30 business days.

No expedited procedures previously existed. Under the normal procedure, the preliminary examination period could take up to 30 business days, followed by a further examination period of 60 business days (which is, in turn, extendable for a further 30 business days).

Change of behaviour commitments

The ICC may accept a "change of behaviour" commitment from a party (eg, a commitment to bring an end to relevant anti-competitive conduct or discontinue anti-competitive behaviour) during an investigation or preliminary examination. However, if the party commits to a change of behaviour at the investigation stage but fails to comply with this commitment, they will not have this option again at the examination stage. Change of behaviour commitments do not apply to price-fixing, market-sharing, bid-rigging, or failure to file violations.

Change of behaviour requests could only be submitted after delivery of a final written decision of the ICC.

Confidentiality

The board of the ICC may declare information or data furnished during an investigation as confidential (and thereby protect disclosure of such confidential information, including in any final written decision of the ICC) or upon request by the parties involved in the investigation.

The previous procedures did not expressly address whether information or data could be deemed and treated as confidential.