On 29 March 2026, the Board of Directors of the Kuwait Competition Protection Agency (the “CPA“) issued Decision No. 33 of 2026 (the “Decision“), establishing for the first time a formal framework governing the confidentiality of information submitted to the CPA in connection with competition proceedings. The Decision introduces clear definitions of trade secrets and confidential information, establishes a structured process for requesting confidential treatment, specifies the criteria the CPA’s Executive Director must apply when evaluating such requests, and addresses the procedures following approval or rejection of a confidentiality claim.

Key Definitions and Scope

The Decision establishes a two-tier system for the protection of information submitted to the CPA, distinguishing between trade secrets, which must be preserved in all circumstances, and other confidential information, which is subject to the Executive Director’s discretionary assessment on a case-by-case basis. Members of the Board of Directors, employees of the CPA, secondees, and persons engaged to work at the CPA are all bound by the obligation to preserve the confidentiality of trade secrets in all circumstances. A “trade secret” is defined as information of commercial value relating to the business activity of a competitor, the disclosure of which to the public or its transfer to a person without authority would cause harm to that competitor. This includes any information, design, method, formula, technique, or composition that is not publicly known and that provides its owner with a competitive advantage. The protection of trade secrets therefore operates as a self-executing obligation: if information objectively meets the definitional criteria, CPA personnel are bound to preserve its confidentiality without any formal request or discretionary assessment. Notably, however, the Decision does not prescribe a mechanism for determining whether particular information qualifies as a trade secret, nor does it designate the individual within the CPA responsible for making that determination. This contrasts with the treatment of confidential information, where the Decision expressly provides that the CPA “shall have the right to determine whether the information is confidential.” This gap remains an open question under the current framework. As a practical matter, parties should not rely solely on the trade secret classification and should submit a confidentiality request for all sensitive information to ensure an additional layer of protection. “Confidential information” is defined more broadly as any information submitted by a competitor or a third party to the CPA with a request to preserve its confidentiality. This category includes financial information, technical information relating to expertise and practical skills, cost evaluation methods, production secrets and processes, supply sources, market shares, lists of customers and distributors, marketing plans, pricing and cost structures, and sales strategies. Practitioners should note that this list is illustrative rather than exhaustive, and parties may seek confidential treatment for other categories of commercially sensitive information not expressly enumerated.

Importantly, if a person submits information to the CPA without an accompanying request for confidentiality, that person shall be deemed to have no objection to the disclosure of all information submitted for the purposes for which it was provided. This default rule underscores the importance of lodging a contemporaneous confidentiality request at the time of filing.

Requesting Confidential Treatment

Parties seeking to protect confidential information must submit a formal request for confidentiality in the prescribed form. The request must identify the information for which confidentiality is sought, provide two copies of the submission (one containing the confidential information and another with the confidential information redacted), and set out a comprehensive explanation of the reasons for confidential treatment and the potential harm that would result from disclosure. When preparing redacted versions, parties should ensure that the non-confidential copy remains meaningful and comprehensible to other parties who may need to respond to the submission; overly extensive redactions may prompt the Executive Director to question the legitimacy of the confidentiality claim. The explanation of potential harm should be specific and substantiated-generic assertions that disclosure would cause competitive harm are unlikely to be persuasive. Parties should consider articulating the precise nature of the competitive disadvantage, the identity of competitors who might benefit from disclosure, and the duration and magnitude of anticipated harm.

Evaluation and Decision Making

The Executive Director evaluates each request on a case-by-case basis, taking into account the importance and value of the information in determining whether a violation has occurred, whether the information is known only to a limited number of persons, whether it can be ascertained from publicly available sources, and the period during which disclosure would cause harm. If confidentiality is approved, the confidential copy is placed in a special file accessible only to the team handling the matter, while non-confidential information is placed in the study file. If the Executive Director considers the request unjustified or determines that disclosure is necessary, the applicant is afforded fifteen days to present arguments in support of confidentiality. If the applicant fails to present arguments within this period, the CPA may deem the applicant to have no objection to disclosure. If the applicant does present arguments for preserving confidentiality, the Executive Director may review the decision and approve the confidentiality request where the arguments are sufficient; the applicant shall be notified accordingly. The Executive Director retains the power to review confidentiality decisions at any time until the conclusion of the matter under examination. If the Executive Director subsequently determines that the information no longer warrants confidential treatment, the same fifteen-day procedure for presenting arguments shall apply. Practitioners should calendar the fifteen-day deadline carefully, as failure to respond results in a deemed waiver of confidentiality. It is advisable to prepare contingency arguments in advance of any submission so that a timely response can be filed if confidentiality is initially denied.

Practical Implications

The introduction of the Decision represents a welcome and significant development for parties engaged in competition proceedings before the CPA. For the first time, a structured process governs the treatment of commercially sensitive information, providing parties with a clear mechanism to seek confidential treatment and a defined standard against which the Executive Director must evaluate such requests. Parties submitting information to the CPA—whether in the context of merger control filings, competition investigations, or other proceedings—should ensure that confidentiality requests are submitted at the time of filing, on the prescribed form, and accompanied by a comprehensive explanation of the reasons for confidential treatment and the potential harm that would result from disclosure. Failure to submit a contemporaneous confidentiality request carries a significant consequence: information provided without such a request will be deemed non-confidential for the purposes for which it was submitted. Parties should also note that the Executive Director retains ongoing discretion to revisit confidentiality decisions at any stage, meaning that the confidential status of information is not irrevocable. To mitigate this risk, parties should periodically reassess whether information previously designated as confidential continues to warrant such treatment and be prepared to supplement their justifications if circumstances change. Companies operating in or entering the Kuwaiti market should familiarize themselves with the new framework and integrate confidentiality request procedures into their standard practice when engaging with the CPA. In particular, in-house counsel and compliance teams should develop standardized confidentiality request templates and internal protocols to ensure consistent treatment across all CPA submissions. Multinational companies should also consider how the Kuwaiti framework compares with confidentiality regimes in other jurisdictions where they operate, as differing standards may require tailored approaches to information management in cross-border matters.

Authors: Asad Ahmad, Partner and Head of Antitrust & Competition and Fahad Al Zouman, trainee lawyer.