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Luis Marin Tobar, Feb 26, 2014
Ecuador’s commercial and legal culture is undergoing a process of self-reflection, analysis, and evolution following the enactment of the Organic Law on Market Power Regulation and Control in October of 2011. The Law provides the first domestic framework on competition in Ecuador and was preceded by the application of Andean Community general norms on competition. Pedro Paez’s designation as first Superintendent for Market Power Control in September of 2012 signaled the beginning of the official practice. This paper seeks to provide an account of the exercise of powers granted to the Superintendency in the first year, as viewed from the standpoint of private legal practice, as well as to note some major areas of confusion that have been detected. The publication of this article comes shortly after the Authorities’ first decision and completed investigation which resulted, on February 7, 2014, in a fine imposed on América Móvil’s Ecuadorean subsidiary, telecoms operator Conecel/Claro, of $138M for abuse of dominance.
The author had the opportunity of participating in formulating observations regarding the Law and its regulations in sessions of the National Assembly-the Ecuadorian legislative branch-in panels and round table discussions organized by various business chambers and other public and private entities in Ecuador. A generalized concern was felt at that time with regard to certain recurrent issues, some of them modified in the final text approved by the Assembly, and others that remained after approval-although the fears have been unjustified in some cases.