Collaboration among competitors in Mexico is still significantly underdeveloped. As in other developing countries, legal uncertainty impedes companies to effectively and lawfully engage in efficient arrangements that would result in benefits for consumers. This is another example of how the innovative but incomplete competition framework that has been developed in Mexico is still insufficient to address the reality of the markets. A rigid approach to per se illegal conducts in the law, combined with the natural ambiguity of antitrust concepts creates enormous gray areas. Mexico is stuck on a formalistic tradition that is constantly tested by new business realities.
By Carlos Mena Labarthe & Edgar Martin Padilla1
Collaboration agreements are insufficiently addressed in the Mexican antitrust legislation. The rigidity of the legal design to categorize per se illegal conduct versus that which admits a rule of reason approach, as well as the broad merger control regime, may play against the understanding, promotion, and regulation of agreements between competitors, despite their benefits to consumers.
In June 2018, an effort to adopt specific guidelines for collaboration agreements that would have provided minimum legal certainty to economic agents, did not pass the debate on COFECE’s Plenum of Commissioners. The conclusion was that it was duplicative with the existing guidelines for information exchange among economic agents. Meanwhile, COFECE has suggested th
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