In press
Chapter in Book: “El paralelismo consciente en el derecho de la competencia”
Summary: Consciously parallel practices are a central issue in Colombian competition law. In Latin America there is no authority that has issued as many decisions in relation to this type of anti-competitive agreement as the Superintendency of Industry and Commerce (SIC) has. Despite the fact that the competition authority has chosen the concept of conscious parallelism and has defined the standard of proof for this type of agreement, there are still doubts about its treatment in Colombia due to the jurisprudence of the Council of State. The high court has established in its sentences a sub-rule according to which the mere parallelism of prices would be sufficient proof of a cartel. This position clashes with the conventional microeconomic theory according to which the similarity of prices between two or more companies is not necessarily the consequence of an illegal agreement. It also contrasts with the doctrine of the SIC, which, for eighteen years, has maintained that mere parallelism is not enough to prove the existence of a cartel. This writing studies the conscious parallelism in competition law at a comparative level and includes the main jurisdictions of Latin America, the United States and the European Union.
Keywords: cartels, tacit collusion, consciously parallel practice, conscious parallelism, price parallelism, concerted practices
It is scheduled to be published in Ortiz (ed.) «Competition Law», U. Externado de Colombia.
In progress
Article: “Challenges to competition and innovation in digital platform markets: Insights from Latin American cases”, with Manuel AbarcaAbstract: In recent years, antitrust agencies from all over the globe have published reports, studies and guidelines about competition challenges associated with digital markets. Some of these agencies have also enforced competition laws in cases of collusion and abuse of dominance in such markets. What about Latin America and the Caribbean (LAC)? While enforcement activities in digital markets have been exceptional, several competition authorities of the region have assessed competition and innovation challenges in merger cases and through advocacy activities. The latter has not been limited to the publication of market studies or reports, competition authorities have also participated with contributions in regulatory processes (e.g. associated with the regulation of platform economies). This paper examines the challenges to competition and innovation in digital platform markets that have been identified by LAC’s antitrust authorities. The article explores the decisions taken by these authorities in the context of enforcement activities (antitrust and mergers) and competition advocacy (reports and opinions in regulatory processes).
Additionally, the paper aims at identifying the similarities and differences between the enforcement and advocacy activities conducted by antitrust authorities in Latin America with respect to the work of their peers in other continents. The research traced the activities of 27 national competition authorities in 21 LAC countries, but cases in digital platform markets we found in over half of these countries. The document explores in detail decisions and activities from eight jurisdictions during the period 2015 – 2020. The research includes 37 cases of antitrust enforcement (Argentina, Brazil, Mexico, Uruguay), merger control (Argentina, Brazil, Colombia, Chile, Mexico), and competition advocacy (Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Panama, Paraguay, Peru, Uruguay).
Keywords: antitrust, competition, innovation, digital markets, multi-sided platforms, Latin America Blog post sharing article previews here.
Article: “Derecho de la competencia en América Latina y el Caribe: Evolución y principales retos”
Abstract: Almost all Latin American and Caribbean countries have competition laws, and most have authorities that effectively implement such laws. However, the trajectories of the 29 national competition authorities in the region that operate in 23 country jurisdictions are divergent.
There is no a monolithic system for protecting competition in the region: there is variation in terms of historical trajectories, economic contexts, and institutional designs. Furthermore, there are differences in the implementation capacity of competition authorities and the institutional and political environments in which they operate. The objective of this article is to offer the reader a bird’s eye view of competition rights and policies in Latin America and the Caribbean. The text explains basic aspects about the historical development of this matter, exposes the types of competition law implementation systems, and highlights some of the main differences as well as the common tendencies of the regimes in the region. Finally, it presents a prospective view, with emphasis on the main challenges for the region.
Keywords: competition law, competition policy, Latin America and the Caribbean, competition authorities
Article: “Competition policy, regulation and development in Latin America: Does competition advocacy join the dots?”, with Andrés F. Suárez
Abstract: Regulatory processes and debates are often informed by antitrust agencies that advocate against potentially anticompetitive governmental regulations.
The competition advocacy function undertaken by these agencies may take the form of submissions, comments, reviews and regulatory impact reports of proposed regulations. While these opinions are usually not binding for sectoral regulators, the participation of competition agencies may have significant influence over regulatory processes. Do antitrust agencies consider economic development, directly or indirectly, as a guiding criterion for competition advocacy in the area of regulation? What does economic development mean for these agencies? This article discusses the relationships that exist between regulation, competition policy and economic development in Latin America. A case study approach was used to answer the research questions, analyzing the cases of three countries that have implemented competition advocacy: Colombia, Chile and El Salvador. The research examined the reports filed and/or published by the competition agencies of these countries, using text analysis methods, and processes data collected from interviews of competition agencies’ former and current officials. The study used qualitative analysis in order to gain insights into the meaning and role of “economic development” in the regulatory processes in which competition agencies perform reviews of proposed regulations.
Article: “Metering Antitrust Authorities: Performance Measurement in the Americas”
Abstract: This paper discusses how performance measurement of competition authorities is implemented and whether these assessments influence enforcement, advocacy and managerial decisions. The paper studies 36 competition authorities from 25 national jurisdictions and two supranational jurisdictions in the Americas. The data was collected through questionnaires answered by officials from competition authorities, interviews to directors, advisors or justices of the agencies or specialised tribunals, and from reports and statistics published in the organisations’ websites. The paper reports that the majority of the competition authorities are subject to some form of external evaluation and most of them also carryout internal performance measurements. However, over 22% of the competition authorities do not disclose online data of their self-assessments. Activity-based indicators are used more frequently than other types of indicators, such as managerial or impact-based indicators. Only four competition authorities regularly calculate the overall consumer benefits generated by their interventions and few authorities measure the rate of judicial reversal of their decisions. The majority of the surveyed officials answered that performance measurements influenced the strategic decision-making of the authority, but there were officials from 20% of these organisations who acknowledged that the criteria used for self-assessment were unclear. External assessments appear to influence the competition authorities’ agendas and incentive legal/institutional reforms.
Keywords: antitrust, enforcement, competition authorities, performance measurement, public management
Juan David Gutiérrez 