In recent travels to Central America, it’s been interesting to see the number of American companies operating and distributing in the region. So in a recent telephone conference with other antitrust practitioners, I was intrigued when competition law in Latin America was discussed. I learned that, as with our firm, as the economy becomes more global and more US companies distribute abroad, antitrust attorneys are receiving more and more questions about antitrust issues in the Americas.
While antitrust laws in many Latin American countries have similar elements to those in the US, unlike US antitrust laws, passed over a century ago, most countries’ laws are new and rapidly changing and evolving. This leads to less clarity in the meaning of the law and less predictability as to enforcement. Because of the newness of the laws and the frequency of change in the law, there are few judicial decisions in many jurisdictions to help define the scope of the antitrust laws. Moreover, most Latin American countries are civil law, rather than common law, jurisdictions. Generally, this means that, rather than looking to the body of caselaw which has interpreted a statute over the years as we do in the US under the common law tradition, these countries using civil law focus on the text of the statute and the application of the facts at hand to the statute.
As the body of antitrust law develops in many Latin American countries, enforcement mechanisms are also developing. Many have created new agencies to investigate and prosecute antitrust violations and the powers of those agencies have been expanded to conduct raids and cooperate with other jurisdictions. Some jurisdictions, such as Chile and Peru, have begun to adopt new leniency programs for those cooperating with investigations, and others have begun allowing those harmed by anticompetitive conduct to bring civil suits.
As Latin American countries work to develop and strengthen their antitrust laws, it will be interesting to continue tracking developments in the region.