Competition Law and Policy in Mexico: Successes and Challenges
2016; Duke University School of Law; Volume: 79; Issue: 4 Linguagem: Inglês
ISSN
1945-2322
Autores Tópico(s)World Trade Organization Law
ResumoI INTRODUCTION Mexico adopted its first competition law, the Federal Law on Economic Competition (Ley Federal de Competencia Economica (FLEC)) in 1992, (1) in preparation for the signing of the North American Free Trade Agreement (NAFTA) which required the three signatory states to have national competition laws. (2) A comprehensive legislation on competition that included prohibitions against cartels, abuses of dominance, and that required merger review, as well as an agency to implement these laws, was a new phenomenon for Mexico. As is frequently the case with legal transplants, at the time, few domestic actors knew what competition law meant and what impact, if any, it would have on them. For the Federal Commission of Competition (Comision Federal de Competencia (FCC)), the early years were a period of trial and error, and the experience proved taxing. Government and private actors criticized the FCC for being weak, court proceedings triggered by companies' complaints slowed down investigations, (3) and a number of the FCC's decisions were reversed by the district courts on procedural grounds. (4) Fast forward to 2015, and the competition scene has changed dramatically in Mexico. Mexican competition law and have become more effective thanks to a series of legislative reforms starting in 2006. Reforms in 2006 (5) and 2011 (6) increased the investigative powers of the FCC by introducing a leniency program, the power to conduct dawn raids, and higher maximum fines for competition infringements. After a constitutional amendment in 2013, the FCC was reconstituted as an autonomous body, renamed the Federal Commission of Economic Competition (Comision Federal de Competencia Economica (COFECE)). (7) The 2013 reforms also established specialized antitrust courts, and the Federal Institute for Telecommunications (Instituto Federal de Telecomunicaciones (IFETEL)), an independent regulator responsible for enforcing competition law in the telecommunications and broadcasting sectors. (8) In 2014, the Mexican Congress passed a new competition law, further increasing the COFECE's powers. (9) The Mexican competition regime has also become more effective as a result of a gradual learning process by the FCC and later the COFECE. Over time, the agencies have improved the legal reasoning and the economic analysis in their investigations and decisions, and have become more transparent and better able to communicate with political, economic, and societal actors. Thanks to these developments, the COFECE has become a well-respected enforcement agency, ranking above some Western European competition agencies with longer histories and much greater resources in the Global Competition Review's annual rankings. (10) Mexico has also climbed from a low of 116th place in 2010 to 67th in effectiveness of anti-monopoly policy according to the World Economic Forum's competitiveness index in 2015. (11) The COFECE participates actively in international forums such as the International Competition Network (ICN) and the Organization for Economic Cooperation and Development (OECD), (12) and is held up in the Latin American and Caribbean region as a model. (13) This article explores the factors that have contributed to the transformation of the Mexican competition regime from a relatively ineffective one in a highly concentrated economy to a relative success story. The gradual strengthening of competition law in Mexico is fascinating because political, economic, and social conditions tip the scales in the opposite direction: a history of high state involvement in the economy, (14) high economic concentration, (15) well-organized business interests, (16) weak regulatory institutions, (17) and a general lack of trust in market mechanisms (18) make Mexico an unlikely case for success. An agency relatively well endowed with financial and human resources in an upper-middle-income country, the FCC/COFECE have also had advantages compared to agencies in poorer countries. …
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