Competitively Sensitive Information in India Between Global Standards and Domestic Gaps

Introduction

For years, Indian Competition Law has regulated information sharing in mergers, although it has never formally defined it. Competitively sensitive information (CSI) is a concept that forms the basis of merger review, gun-jumping enforcement, as well as cartel investigations; however, it has never been formally defined under Indian law.

This lack of clarity often led to inconsistent interpretations, with parties to a merger struggling to understand what kind of information could be considered sensitive enough to trigger merger notification and obligations before the Competition Commission of India (CCI).

The CCI itself has relied heavily on global antitrust regulatory authorities, such as EU, USA and Brazil, particularly to define what CSI meant. The CCI, in Bharti Airtel Limited[1] (Bharti Airtel) considered international guidelines such as the CADE guidelines, Brazil[2] in inferring what constitutes CSI.

This definitional vacuum continued despite the CCI investigating and penalising conduct involving pre-merger coordination and sharing of CSI. In its 2018 order against Bharti Airtel[3], the CCI explicitly identified the risk of CSI exchange as “grounds for a potential reduction in competition between parties”. But even then, CSI remained a borrowed term from foreign frameworks.

This blog will, through a comprehensive analysis on the definition of CSI and a comparison with International Standards, provide criticisms for the current standard along with recommendations for change.

What constitutes CSI?

The concept of CSI has long been at the centre of antitrust enforcement, both as an evidentiary trigger for pre-consummation of a merger, known as Gun Jumping, and as a standalone threshold for AAEC. CCI released a Compliance Manual[4], suggesting that the exchange of CSI can be considered as one of the parameters to trigger a penalty and violation under Section 6 (2A)[5] of the Competition Act, 2002[6] (the Act). This practice remained largely undefined until the recent release of the CCI’s FAQ document[7].

This clarification now provides a working description of what constitutes CSI. According to the CCI, for the purpose of Sections 5[8] and 6[9] of the Act, “CSI relates to the information that is important for an undertaking to protect, maintain or improve its competitive position in the market.” Such commercially significant, non-public data[10], including but not limited to market entry or exit strategies, investment, annual business plans, and board minutes, could influence competitive strategies and decisions if accessed by market rivals.

Access to CSI began to gain prominence in merger control with the CCI’s order in ChrysCapital/Intas[11]. The CCI ordered establishing firewalls to prevent CSI exchange, passive or otherwise, leading to information sharing between actual or potential competitors, by directing information barriers at the board level and also in managerial areas.

The exchange of information constitutes a violation if it’s strategic in nature and not in ordinary course of business, made solely as investments. Referring to the CCI’s practice, it has been stated that the term “ordinary course of business” is meant to refer to transactions which are “frequent, routine and usual”.

The CCI has given several categories of CSI in its decision in Goldman Sachs/Biocon[12], to include financial data, business forecast and other confidential information. Inclusion of wide terms such as ‘financial data’ and ‘confidential information’ is not helpful in discerning the scope of CSI as the ambiguity and lack of definition of such terms can trigger filing of gun-jumping concerns by CCI.

While the list for what constitutes CSI is non exhaustive, the CCI has simultaneously clarified what does not fall under CSI. In Adani Green Energy Limited[13], the CCI admitted that “certain exchange of information between the parties to a combination is inherent to the very process of acquisitions”. The nature and the scope of information exchanged have to be analysed considering factors such as:

1. The stage at which the merger process is: at due diligence stage or the integration planning stage, and

2. The extent of integration between parties and nature of the businesses integrated.

International Standard on CSI

A comparison of international authorities, such as EU Guidelines on Application of Article 101, the European Commission’s Horizontal Guidelines[14] and Brazil’s CADE Guidelines, reveals one common underlying factor: that authorities are now more focused on how information is exchanged and how it can be ensured that only such information is exchanged which is strictly necessary for the purpose of completing a legitimate merger.

To have a clear working definition of CSI, it is necessary to compare the same with definitions laid down by regulators across multiple jurisdictions. The European Commission (EC) Guidelines on applicability of Article 101 TFEU[15], provide clarity on the inclusions and exclusions of what constitutes CSI and nature of the information exchanged.

Such exchanges include data sharing arrangements, wherein two or more competitors contribute data to a common database and obtain access to some or all of the data contributed by other competitors. To constitute a restriction of competition by object, the EC will pay attention to the content, objectives and context of information exchange.

But in most cases, the objectives of an exchange[16] of such information does not reveal a sufficient degree of harm to competition, but may still have restrictive effects. Such effects on competition must be analysed on a case-by-case basis. In this context, it’s no longer sufficient for a regulatory authority to identify CSI merely, but also to develop mechanisms to manage the exchange, access and control of such information during transactions.

These methods come in furtherance of the belief that the exchange of sensitive information must not be in the absence of any kind of safeguards[17], limiting the kind of information and the number of individuals with access to disseminate such information.

Institutionalized mechanisms like clean teams[18], a group formed by individuals from both companies bound by non-disclosure agreements, and cannot act in a managerial capacity, ensure a controlled environment. They ensure that even when information is necessary to be passed on, it must be shared in a manner so as to not reduce competitive uncertainty.

CADE Guidelines and Portugal Competition Authority (AdC)

The Brazilian Competition Authority (CADE), as well as the AdC[19], have taken the lead in formulating comprehensive guidelines to prevent Gun jumping and exchange of CSI. These Guidelines and practices recommend a combination of safeguards to create well-defined procedural boundaries. These guidelines provide one of the most detailed accounts of competitively sensitive information in merger transactions. They address not only the identification of such information, but also the effects and risks that arise from its exchange.[20]

The Guidelines recommend the adoption of an Antitrust protocol, a formal document that outlines how the merging parties will share and process CSI during negotiations and regulatory reviews. The protocol prescribes formation of clean teams and executive committees, mandating that the former must operate independently from commercial decision-making.

The most well-known mechanism developed by CADE is the concept of “parlour rooms,” a digital, secure, access-restricted environment where sensitive documents are reviewed. Access to these rooms is governed by strict protocols accessible only to authorised individuals, usually Clean Teams, external legal counsels, all of whom are bound by confidentiality agreements.

Parlour/data room[21], a secure room with established protocols to manage and facilitate the exchange of CSI are used by the clean teams for any such exchange. It should be noted that mere reference to clean teams is insufficient. CCI’s through its order in Adani Green Energy Limited[22], establishes that evidence of actual implementation of clean teams, the composition and specific confidentiality obligations must be provided as well.

The AdC takes a more internalised approach and emphasises the use of carefully structured data rooms, which are digital platforms with restricted, tiered access based on user role and data sensitivity. These frameworks highlight a need for merging parties to avoid improper information sharing and to design institutionalised, transparent systems to prove they never crossed that line.

It is evident in practices in both jurisdictions that regulation of CSI doesn’t stop at definitional clarity. Both the EU and CADE address who can access the information, when it can be accessed, and whether it can influence independent market conduct before approval. The focus is less on the existence of information exchange and more on conditions under which it takes place.

Conclusion: Criticisms and Development

While acknowledging the need for the exchange of information, the CCI Manual lays down the formation of Clean Teams, which comprises a limited number of individuals. The Clean Teams should not include personnel involved in pricing, marketing, sales, etc., to ensure that they are not influenced by any CSI during the day-to-day operations of the business.

The manual recommends that sensitive information should be accessible only to members of this team. However, the framework still leaves several important gaps, both in design and in implementation.

Firstly, the Clean Team model is present as an isolated safeguard, with no reference to other safeguards such as data rooms, protocols, information classification, or aggregation techniques. Without these measures, the Clean Team mechanism lacks operational clarity. This becomes problematic in cross-border transactions, where parties are expected to follow strict procedural norms in other jurisdictions but have no comparable guidance under Indian law.

Secondly, the Manual’s recommendations remain ambiguous. In Adani Green, CCI recognised the potential of Clean Teams as safeguards for the exchange of CSI. However, for such safeguards to be effective, various aspects of clean teams, ranging from their constitution to the rules governing their engagement, need to be expressly laid down and complied with. Presently, Indian merger regulation continues to engage with CSI principally at the level of interpretation rather than procedure. Safeguards remain suggestive, with limited governance of how information exchange is to be managed.

Third, there is limited decisional practice on this issue. While CCI has occasionally referred to the exchange of CSI in its orders and guidelines, there is still no consistent decisional practice on the issue. Beyond the Bharti Airtel[23] case, the CCI has not provided conclusive reasoning on how it evaluates the misuse or handling of CSI in merger proceedings.

Without practical decisions illustrating how it's implemented, as well as the penalties implemented, merging parties have little to rely on when evaluating whether their practices are within acceptable bounds.

The CCI’s recent attempt to define CSI remains an incomplete project. Acknowledging CSI without specifying enforceable safeguards or interpretive standards limits its interpretation. As merger transactions continue to be globalised, India’s framework must evolve to offer clarity, especially for cross border transactions. Concrete safeguard requirements that would mark a shift away from the discretionary mechanism currently in force would give merging parties greater certainty and prevent competitive harm in the pre-acquisition stage.

[1] Bharti Airtel Limited and Lion Meadow Investment Limited (Combination Registration No. C-2023/10/1074), CCI Order under Section 43A of the Competition Act 2002 (23 August 2023)

[2] Administrative Council for Economic Defense (Brazil), 'Guidelines for the Analysis of Previous Consummation of Merger Transactions' (September 2016) https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/guias-do-cade/guideline-gun-jumping-september.pdf accessed 9 November 2025

[3] Bharti Airtel Limited and Lion Meadow Investment Limited (Combination Registration No. C-2023/10/1074), CCI Order under Section 43A of the Competition Act 2002 (23 August 2023)

[4] Competition Commission of India, 'Competition Compliance Manual' (2 May 2017) https://www.cci.gov.in/images/publications_compliance_manual/en/compliance-manual1652179683.pdf accessed 9 November 2025

[5] Competition Act 2002 (India), s 6(2A)

[6] Competition Act 2002 (India)

[7] Competition Commission of India, 'Frequently Asked Questions' https://cci.gov.in/images/whatsnew/en/faq-book-english-compressed1747724324.pdf accessed 9 November 2025

[8] Competition Act 2002 (India), s 5

[9] Competition Act 2002 (India), s 6

[10] Competition Commission South Africa, 'Guidelines on the Exchange of Competitively Sensitive Information' (27 January 2023) https://www.compcom.co.za/wp-content/uploads/2023/08/GUIDELINES-ON-THE-EXCHANGE-OF-COMPETITIVELY-SENSITIVE-INFORMATION.pdf accessed 9 November 2025

[11] ChrysCapital, Canary Investment Limited and Link Investment Trust II v Intas Pharmaceuticals Limited, CCI Order under Section 31(1) of the Competition Act 2002 (30 April 2020) Combination Registration No. C-2020/04/741

[12] Proceedings against Goldman Sachs (India) Alternative Investment Management Private Limited, CCI Order (14 January 2025) Ref No M&A/10/2020/01/CD

[13] Proceedings against Adani Green Energy Limited, CCI Order under Section 43A of the Competition Act 2002 (9 March 2022)

[14] Communication from the Commission, 'Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements' OJ C219/1

[15] Consolidated Version of the Treaty on the Functioning of the European Union OJ C115/47, art 101

[16] Banco BPN/BIC Português SA and Others v Autoridade da Concorrência (Case C-298/22), Opinion of Advocate General Rantos, ECLI:EU:C:2023:738 (5 October 2023) https://curia.europa.eu/juris/document/document.jsf?text=&docid=286627&pageIndex=0&doclang=EN accessed 9 November 2025

[17] United States Federal Trade Commission and Department of Justice, 'Roundtable on Information Exchanges between Competitors under Competition Law – Note by the Delegation of the United States' DAF/COMP/WD(2010)117 (21 October 2010) https://www.ftc.gov/sites/default/files/attachments/us-submissions-oecd-and-other-international-competition-fora/1010informationexchanges.pdf accessed 9 November 2025

[18] 'A 'Cleaner' Approach To Deals' Mondaq (13 July 2020) https://www.mondaq.com/india/antitrust-eu-competition/965106/a-cleaner-approach-to-deals accessed 9 November 2025

[19] Autoridade da Concorrência (Portugal), 'Best Practices Guide on Gun-Jumping' https://www.concorrencia.pt/sites/default/files/Best%20Practices%20Guide%20on%20Gun-jumping.pdf accessed 9 November 2025

[20] Rashi Kumari and Ananyashree Jaiswal, ‘India’s Gun-Jumping Framework: When Does a Combination “Come Into Effect”?’ (IndiaCorpLaw, 10 September 2025) https://indiacorplaw.in/2025/09/10/indias-gun-jumping-framework-when-does-a-combination-come-into-effect/ accessed 10 February 2026.

[21] Tauil & Chequer Advogados in association with Mayer Brown LLP, 'Upcoming Changes Involving Brazilian Merger Control Announced At FIESP' Mondaq (2 March 2015) https://www.mondaq.com/brazil/trade-regulation-practices/379580/upcoming-changes-involving-brazilian-merger-control-announced-at-fiesp accessed 9 November 2025

[22] Proceedings against Adani Green Energy Limited, CCI Order under Section 43A of the Competition Act 2002 (9 March 2022)

[23] Bharti Airtel Limited and Lion Meadow Investment Limited (Combination Registration No. C-2023/10/1074), CCI Order under Section 43A of the Competition Act 2002 (23 August 2023)