Developing World Antitrust

By Francisco Beneke*

(Last updated on 12 April 2017)

Competition policy, as we now know it, is a relatively recent phenomenon in some Latin American countries, not so new in others, and non-existent in an ever smaller group. The issue of antiquity is illustrative of the context in which enforcement authorities and the courts interact with each other. It can affect the degree to which they are influenced by older regimes and also tell us something about the path of institutional strengthening that every authority undergoes. In other words, one would expect that long-standing competition authorities face different challenges than their younger counterparts.

Because the post was turning into a lengthy document, I will divide it in two parts. Part I deals with North and Central America and the Caribbean, and part II will present the information corresponding to South America. The latter will be published in one-week time.

The year in which I consider that a modern competition policy began in each Latin American country is presented. The starting date is counted from when a competition authority started to exist, who is in charge of enforcing an antitrust law applicable on an economy-wide basis, as opposed to sectoral regulation of competition. Exclusively criminal liability statutes are excluded since experience has shown they were seldom enforced and, therefore, cannot be counted as a policy apt to deter anticompetitive behavior. For the same reasons, in some cases I do not start counting from the year of the country’s first economy-wide competition law if they were either not enforced or done so in procedures without the expectation of a dissuasive penalty. More details will be presented as each country is analyzed.

1. Mexico

Mexico’s first competition law entered into force in June 1993, and created the Comisión Federal de Competencia.[1] It is hard to find the exact month when the institution started to operate. According to the first annual report, merger control activity and the prosecution of anticompetitive behavior started during the second half of 1993.[2] Therefore, that year is set as the starting date of modern competition policy in Mexico.

2. Guatemala

Guatemala is one of two countries in Latin America that still does not have an economy-wide competition law.

3. El Salvador

El Salvador’s first competition law entered into force in January of 2006, date in which the antitrust authority, Superintendencia de Competencia, started to operate.[3]

4. Honduras

Honduras’s first competition law entered into force in February 2006 but it was not until December of that year that the Comisión para la Defensa y Promoción de la Competencia started to operate.[4]

5. Nicaragua 

Nicaragua’s first competition law came into force in June 2007, but it was not until March 2009 that the first authorities were elected and started to hire the authority’s first team of professionals.[5] Therefore, the latter date is set as the beginning of competition policy in Nicaragua.

6. Costa Rica

According to the OECD peer review of competition policy in Costa Rica, the Comisión para Promover la Competencia started to function in 1996 (OECD (2014, p. 7)).[6] However, the same report states that the first cases decided by the authority date back to 1995 (Id., p. 28 & 34). The authority’s website shows the same information of a cartel and an abuse of dominance case that were resolved in 1995.[7] It appears that the OECD 1996 date may have been a mistake and that the real year in which the antitrust law began to be enforced was 1995.

7. Panama

Panama’s first competition law was enacted in February of 1996, but according to the OECD peer review, the antitrust authority received its first endowment in 1997 (OECD (2010a, p. 57)).[8] Indeed, 1997 is the first year in which the Comisión de Libre Competencia y Asuntos del Consumidor reports activity.[9]

8. Dominican Republic

The Dominican Republic’s first law was enacted in 2008 but the authority was only able to start its enforcing tasks in January 2017 because that was the date when its Executive Director was chosen.  [10]

9. Haiti

Haiti is the other one of the two Latin American countries that does not have a competition law.

The table below presents a summary of the information.

To conclude, it is worth noting that Mexico’s policy is the oldest from the countries under analysis. In Central America one can distinguish two waves of adoption of competition policy, with Costa Rica and Panama as the pioneers. The rest of Central America caught up some 11 to 14 years later with the exception of Guatemala, who under the Association Agreement with the European Union has the obligation to pass a competition law by the end of November of 2016. The two sovereign Latin-Caribbean states lack competition policies as well, though the Dominican Republic is just a few steps away.

*Co-editor, Developing World Antitrust

[1] Http://189.206.114.203/index-cfc.php?Itemid=617.

[2]Http://189.206.114.203/images/stories/Publicaciones/Informesanuales/completos/informe9394completo.pdf.

[3] Http://www.sc.gob.sv/pages.php?Id=8&Id_menu=102010.

[4] Https://www.cdpc.hn/sites/default/files/Privado/Memorias/memoria%25202006.pdf.

[5] Http://www.procompetencianic.org/info/2012/InformeEjecutivo2009.pdf.

[6] Http://www.oecd.org/daf/competition/CostaRica-PeerReview2014esp.pdf.

[7] Http://www.coprocom.go.cr/que_hacemos/sanciones.html.

[8] Http://www.oecd.org/daf/competition/46587096.pdf.

[9] Http://www.acodeco.gob.pa/acodeco/view.php?arbol=4&sec=19&pagi=0.

[10] Https://www.diariolibre.com/economia/nueva-directora-ejecutiva-viene-a-darle-validez-a-pro-competencia-CG5932567.