Omar Guerrero Rodriquez, Alan Ramirez Casazza, Aug 26, 2013
This year will be remembered as one of the most important years in modern history for Mexican competition law. In the second quarter of 2013 a major amendment to Article 28 of the Mexican Constitution labeled “the Constitutional Amendment in Telecommunications” rocked the foundation of the Mexican Competition Regime (“2013 Amendment”). The goal of the 2013 Amendment was to mend, within the Constitution, the competition problems in the telecom sector. However, this amendment also drastically affects general competition policy and enforcement in Mexico.
After rapidly passing through both houses of the legislator and the majority of the State legislatures, the amendment was published in the Federal Official Journal on June 11, 2013. Most parts of the 2013 Amendment became effective the following day while other, more detailed transitory articles will become effective at a later date.
The 2013 Amendment was a surprise, both domestically and abroad, as it came just two short years after the May 2011 Legal Amendment, which strengthened the competition regime. The May 2011 Legal Amendment had not even been fully tested and now the 2013 Amendment changes the entire competition landscape. Embedded within the 2013 Amendment are undertones of distrust regarding current and future business communities, regulators, judges, and politicians. Changing the competition regime by way of constitutional amendment creates immobility in the law because constitutional amendments require political muscle not always enjoyed by Mexican lawmakers.
The success of the 2013 Amendment will depend on several factors: (i) efficiency of the new appointment procedures; (ii) proper appointment of specialized Federal Judges; (iii) quality of supplementary laws and regulations; (iv) how much we learn from past mistakes and successes; and (v) respect for due process and fundamental rights within competition proceedings.
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