I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
Antitrust legislation has been in place for over a century in Argentina, yet private litigation for the compensation of damages in competition matters is still nascent. Since the enactment of the latest Antitrust Law No. 25,156 (the Antitrust Law) in 1999 there have been no significant cases in which compensation has been pursued against perpetrators of an illegal anticompetitive act. There are two circumstances that may trigger a change in this regard in the near future.
The new Civil and Commercial Code that became effective on 1 August 2015 has incorporated into its Section 11 the notion of abuse of dominant position and, even though ‘dominant position’ is not expressly defined in the Code (it is defined in the Antitrust Law), this express inclusion could encourage judges to grant indemnification for the damages caused by this particular type of abuse. According to Section 10 of the Civil and Commercial Code, the judge must order what is necessary to prevent the effects of the abuse and, if appropriate, set the appropriate reparations.
Over the course of 2016 a new administration has taken over the enforcement agency, namely the Antitrust Commission, and has sent a draft bill for a new Antitrust Law to Congress (the Draft Bill), which includes several new provisions regarding private litigation and sets out more detailed regulation as regards these actions. Furthermore, the Draft Bill seeks to include for the first time in Argentina a leniency procedure in order to enhance enforcement of collusion investigations. The increase in those types of investigations would most likely lead to further follow-on litigation cases. It is expected that the Draft Bill will be analysed by Congress over the first half of 2017.
Significant modifications will take place in the composition and functions of the enforcement agency if the Draft Bill passes.
Pursuant to this proposal, the current double-tier system comprising both the Antitrust Commission and the Secretary of Trade will be discarded in favour of a new Antitrust Authority, which will include three divisions: the Antitrust Tribunal, the Anticompetitive Conduct Secretariat and the Merger Control Secretariat.
The Antitrust Authority’s members will be appointed by the Executive Power after a pre-selection carried out by a qualified jury composed of the Ministry of Production, the National Treasury Procurer and members of the Legislative Branch.
The Antitrust Tribunal will be composed of five members. The roster of the new authority will include at least two economists and two attorneys. This Tribunal will be in charge of imposing the sanctions established in the Draft Bill, resolving preliminary defences, deciding on the approval of mergers and carrying out market investigations that may be deemed pertinent. In addition, this Tribunal will impose the fees that individuals or companies will have to pay at the time that a merger is notified.
For its part, the Merger Control Secretariat will have as its main objective receiving and processing the advisory opinion and merger dockets that are filed before the Authority. Furthermore, it will have the authority to decide on the approval of those mergers that qualify for a fast-track review process, the requirements of which will be determined by the Antitrust Tribunal.
Finally, the Anticompetitive Conduct Secretariat will be created with the main purpose of receiving and processing investigations on anticompetitive conduct in order to give the Antitrust Tribunal recommendations regarding the sanctions that would have to be applied.
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
Private competition enforcement in Argentina is based on the general tort law provisions of the Civil and Commercial Code in combination with the specific competition law provisions set out by the Antitrust Law.
Pursuant to Section 1 of the Antitrust Law, certain acts relating to the production and exchange of goods and services are prohibited if they restrict, falsify or distort competition, or if they constitute an abuse of dominant position, and provided that, in either case, they cause or may cause harm to the general economic interest. Such behaviour or conduct is not unlawful as such, nor must it cause actual damage; it is sufficient that the conduct is likely to cause harm to the general economic interest. It is important to emphasise that the general economic interest need only be potentially affected for the infringement to exist.
Under the Draft Bill there would be a change with regard to this provision, given that a new Section 1-bis would be included under which collusive conducts would be considered as anticompetitive per se and harmful to the general economic interest without further analysis.
Section 2 of the Antitrust Law provides a non-exhaustive list of the practices that, provided they meet the requirements set forth under Article 1, would constitute practices forbidden by the Antitrust Law. The list provided under Section 2 of the Antitrust Law includes the following practices:
- a price fixing;
- b practices that restrict or control technical development or the production of goods and services;
- c practices that establish minimum quantities or the horizontal allocation of zones, markets, customers or sources of supply;
- d agreement or coordination of bids in public biddings;
- e exclusion or obstruction of one or more competitors from entering a market;
- f conditions that tie the sale of goods to the purchase of other goods or to the use of a service and conditions that tie the provision of a service to the use of another service or the purchase of goods;
- g conditions that tie a purchase or sale to an undertaking not to use, purchase, sell or supply goods or services produced, processed, distributed or commercially exploited by third parties;
- h unwarranted refusal to fulfil purchase or sale orders of goods or services submitted in existing market conditions;
- i imposition of discriminatory conditions for the purchase or sale of goods or services not based upon existing commercial practices;
- j suspension of the provision of a dominant monopolistic service in the market to a provider of public services or services which are of public interest; and
- k predatory pricing.
Pursuant to Section 51 of the Antitrust Law, any individual or legal entity suffering damage from any conduct or act prohibited under the Antitrust Law has the right to file a private action for damages in accordance with the civil law provisions.
Damages can be requested pursuant to the provisions set forth in Article 1716 of the Civil and Commercial Code, which states that the violation of the duty of not causing damage to another person gives rise to the compensation for such damages. Those actions are ruled by the Civil and Commercial Code and must be filed before the competent courts within the jurisdiction of the defendant’s domicile. The basic rule derived from the provision is that whoever causes damage intentionally or due to negligence is liable to the damaged party.
In relation to the applicable statute of limitations, there is no clarity regarding the legislation to be used. Arguably, the general term of five years set out in the Antitrust Law applies rather than the three-year term for civil reparations in the Civil and Commercial Code. There are no specific precedents in this regard. Furthermore, the triggering event for the calculation of the statute of limitations remains unclear; it could be deemed to commence with (1) the generation of the harm itself, (2) the resolution issued by the Antitrust Commission, or (3) the ratification of the resolution by the courts.
This matter would be clarified under the new Draft Bill, given that it sets out the applicable statute of limitations for damages as follows: (1) a three-year term that commences on the date the conduct takes place or finishes, or when the victim becomes aware or could reasonably become aware of said conduct, or (2) a two-year term from the issuance of the Antitrust Authority’s condemnatory resolution. Regarding conducts that take place over continued periods of time, any of these terms will commence on the date the anticompetitive conduct ceases.
Furthermore, under the Draft Bill, the action’s limitation periods will be interrupted (1) with a claim; (2) by committing another action sanctioned by this Draft Bill; (3) with the presentation of a request to benefit from an exemption or fine reduction; (4) when a notification is delivered to the allegedly responsible parties of an anticompetitive conduct to give explanations; and (5) with a formal accusation. It also must be highlighted that, in this context, the imposed sanctions will prescribe five years after the applied sanction is final according to Section 59 of the Draft Bill.
One of the most important changes in the Draft Bill is a new chapter devoted to damages, which includes several changes to the current system.
The new Section 51-bis of the Draft Bill sets out that once a resolution is issued by the Antitrust Authority, the follow-on damages litigation will be carried out by means of an executive summary proceeding (namely, the most rapid of all proceedings in Argentine procedural law) and that the court will base its decision on the Antitrust Authority’s decision. In addition to said damages, Section 51-ter sets out that a civil fine in favour of the injured party may also be granted, depending on the gravity and circumstances of the case. Where more than one person or company has carried out the action, they will all be jointly liable to the payment of the damages or fines, as per Section 51-quater.
Furthermore, a specific provision (Section 51-quater) regulates the scenario posed with regard to leniency applicants, in the sense that they ‘may be exempted or their liability reduced’ as regards damages and fines as set out in that very specific chapter. It remains to be seen whether such language will be clarified prior to the Draft Bill’s enactment, but it could be interpreted that the exemption or reduction would depend on the degree of the overall type of leniency immunity granted to the company. The very same section sets out an exemption to said rule for the following cases: (1) as regards its direct or indirect buyers or suppliers and (2) any other injured parties only when the full reparation of the damages of the conduct could not be obtained from the other companies involved in the same anticompetitive conduct.
Pursuant to Section 3 of the Antitrust Law, all of its provisions are applicable to (1) all individuals and entities that carry out business activities within Argentina, and (2) those that carry out business activities abroad to the extent that their acts, activities or agreements may affect the Argentine market (known as ‘effects theory’). Therefore, if a company carries out business activities abroad and such activities have effects in the Argentine market, the Antitrust Law may be applied.
While there are no specific precedents regarding extraterritorial private antitrust litigation, analysis of the effects in merger control cases could be used as a guideline.
In that regard, the Antitrust Commission has established a special test to measure the effects that the parties of the foreign-to-foreign transaction have in Argentina. This test may be applied only if the parties involved in the foreign-to-foreign transaction have sales or imports into Argentina. According to this test, the effects in the local market of a foreign-to-foreign transaction must be substantial, normal and regular, but there is no precise rule to determine such matter. The Antitrust Commission has decided several cases2 based on (1) the market participation of the products imported by the parties of the foreign-to-foreign transaction and (2) the regularity of the imports over a certain period of time (the immediately preceding three years). The effects have been considered substantial if the exports into Argentina represent a significant percentage of the total relevant market in Argentina of that specific product. The effects are regular and normal if the imports have been constant during the preceding three years. However, the matter must be analysed on a case-by-case basis.
Applied to anticompetitive practices, those acts carried out abroad, but with substantial, normal and regular effects in Argentina, could be investigated and punished by the Antitrust Law.
According to Argentine civil legislation, any person who has suffered damages arising from anticompetitive practices prohibited by the Antitrust Law is entitled to file a suit for damages before the competent court.
To be entitled to file a suit for damages arising from anticompetitive practices, the prior intervention of the Antitrust Commission is not necessary; the Antitrust Commission is not part of the proceedings generated by the private action, unless expressly requested by the court. If, however, the Antitrust Commission has investigated the anticompetitive practice and issued an opinion, courts have relied on the findings of the regulator and have only focused on the link between the already proven conduct and the claim for damages rather than re-tracing the investigation.
Pursuant to Section 43 of the Argentine Constitution, class actions may be submitted by the affected person, the ombudsman and associations authorised by law.
V THE PROCESS OF DISCOVERY
In the current Argentina procedure, there is no preliminary stage. Thus, the claimant cannot request from the counterparty information related to facts that are essential to develop the purpose and characteristics of his or her claim, or to develop his or her strategy and defence. As such, parties are under no obligation to produce documents other than those upon which they wish to rely on. It is the court’s sole discretion to admit or reject the production of any evidence, including documents of any nature.
Sections 325 and 326 of the Civil and Commercial Procedural Code provide that in certain cases, those who are or will be part of a discovery process, who have reasonable grounds to believe that the production of their evidence during the evidence period may be impossible or very difficult, may request the production of the following evidence:
- a witness testimonies of an old or sick person, or a person who is going to be absent from the country;
- b an expert report to register the existence of documents, and the state, quality or condition of goods or places;
- c reports from public entities or private individuals or companies; or
- d the exhibition, protection or seizure of documentation related to the purpose of the trial.
Without reasonable justification for not doing so, evidence must be produced before the judge during the trial. Parties must produce all relevant documentary evidence upon submitting their claim or their answer and a list of specific documents that they want to have the court order produced from the opposing party or from a third party. They must also indicate all other means of evidence they intend to rely upon.
The evidentiary stage has two well-defined phases. The first phase consists of a hearing of the parties before the judge, where the latter invites the parties to conciliate. If parties cannot settle the matters in dispute, the judge must define the questions of fact that are relevant to the adjudication of the parties’ claims and on which evidence will be produced. The judge must then receive the objections of the parties to the evidence that the other party intends to rely on. The second phase consists of the production of the relevant evidence.
The Civil and Commercial Procedural Code identifies and regulates in detail the types of admissible evidence, which includes the following: documents, reports, interviews with the parties, testimonies of witnesses, experts’ reports and judicial inspection. The Civil and Commercial Procedural Code also provides rules to deal with evidence appearing after the evidence period has expired.
The procedure for the discovery of documents is unfamiliar to the Argentine legal system. Parties are under no obligation to produce documents other than those upon which they wish to rely. However, a party may request from its opponent (or a third party) the submission of one or more specifically identified documents that are relevant to the resolution of the dispute.
The burden of evidence lies on the party that asserts the existence of a controverted fact which that party raises as the basis for its claim or defence. However, Section 1735 of the Civil and Commercial Code states that the court may modify this principle to impose the burden on the party in the best position to produce such evidence.
The new Draft Bill has an important provision on the case of leniency applicants. It sets out that the identity of the applicants will remain confidential, as well as its depositions or any other information provided in the course of an ongoing investigation conducted by the Antitrust Authority. This confidentiality is of great importance, especially given that judges who intervene in any follow-on litigation regarding an antitrust offence will not be able to unveil the identity of the applicants or require the evidence provided by them during the course of the administrative investigation.
VI USE OF EXPERTS
The use of experts’ reports is among the types of admissible evidence regulated by the Civil and Commercial Procedural Code.
Parties may request that the court appoint an expert. Additionally, courts may appoint experts even when the parties have not requested the assistance of an expert. Experts must provide their opinion on the questions put to them by the courts. In practice, each party prepares a list of the questions they want the expert to answer; the court reviews these questions and then puts them to the expert. The judge may, however, decide to change the questions, eliminate some or all of them, or add further questions. Once the expert has produced his or her report the parties are given the opportunity to question all or parts of the report. Parties may also be assisted by party-appointed experts.
VII CLASS ACTIONS
Pursuant to Section 43 of the Argentine Constitution, the affected person, ombudsman, and associations authorised by law are entitled to file a class action.
Considering the lack of a law regulating this kind of action, the Supreme Court,3 on a leading case in this matter, held that there are three categories of rights: (1) individual rights, (2) rights with a collective impact that concern collective assets, and (3) rights with a collective impact that concern individual but homogeneous assets.
This third category – rights with a collective impact that concern individual but homogeneous assets – is constituted by personal or property damages resulting from conduct that damages the environment or the competition, or the rights of users and consumers and those of discriminated persons, consisting of a single or continuous act that causes harm to all the members of the group.
The Supreme Court further identified the requirements that must be met in order to bring a collective action:
- a the existence of a common factual cause that causes injury to a significant number of individual rights;
- b the claim must be focused on the collective effects of such cause and not in what each individual might seek; and
- c the demonstration that individual actions are not justified, which could affect access to justice.
However, even in the presence of typically individual rights, class actions will also be available when there is a strong state interest in their protection, whether this is because of their social relevance or because of the special features of the affected parties.
One of the most renowned cases regarding cartels in Argentina has been the Cement case,4 in which six major cement producing companies were accused of agreeing to allocate markets nationwide for almost 20 years. The Antitrust Commission’s investigation began in 1999, when a disgruntled employee supposedly revealed to a newspaper that the cement companies were exchanging information and agreeing to divide the market.5 While the source of the article was never revealed, it was used as a starting point for the Antitrust Commission’s investigation. According to the findings of the Antitrust Commission, the alleged exchange of confidential detailed market information was performed via the Association of Portland Cement Manufacturers (APCM). After a raid on the APCM premises, the Antitrust Commission found records of real-time software that was used to exchange current commercial records of the cement companies.6
This finding, as well as evidence of meetings in hotels between representatives of four of the companies, led the Antitrust Commission to discover the existence of a cartel that exchanged confidential and sensitive information about the cement market and that fixed prices in some areas.7 The fine imposed on 25 July 2005 by the Antitrust Commission and the Secretary of Trade totalled 309,729,289 pesos and was confirmed by the Supreme Court in August 2013.
Based on this anticompetitive conduct, a consumer association (the Consumer Protection Association of Mercosur) filed a class action against the cement companies for the damages caused by the cartel. The consumer association claimed to represent a global class that primarily involved all the consumers, another class that involved all indirect consumers and finally a sub-class of indirect consumers which involved all persons that had acquired new or recently built buildings, or that had requested a third party (e.g., architects, engineers or building contractors) to construct a building or structure using cement.8
The Supreme Court considered the initiators of a collective process must provide an objective, certain and easily verifiable definition of the class they want to represent. The members of the class should be effectively identified, so as to facilitate the Court checking the existence of the relevant class as well as determining who its members are. Furthermore, the plaintiff must present the reasons for which the denial of the class action would affect the rights of the represented class.
In the consumer association action, the Supreme Court considered these requirements not fulfilled by the consumer association and the suit was dismissed.
VIII CALCULATING DAMAGES
The affected parties of an illegal conduct under the Antitrust Law may request three types of damages compensation that are not mutually exclusive: actual damages, recovery for loss of goodwill, and moral hardship.
If the injured party can prove that the damage arose from an offence against it and from a conduct expressly prohibited by law, then the victim can claim for compensation for actual injuries. The injured party is entitled to claim for actual profits during a given preceding period to be taken for the calculation of the average or normal profit of the injured party. Once the court has determined the monthly or yearly average profit, this figure will be projected over a period to be determined by the court (e.g., six months or one year). The length of time will depend on the specific case and lies within the discretion of the court.
Furthermore, recovery for loss of goodwill can also be requested. The success in obtaining this type of compensation will more likely depend on whether the injured party has suffered an injury to its commercial prestige or credibility. In assessing the damages, a variety of circumstances should be considered such as the nature of the business, the quantity and importance of the injured party’s clients, its prestige and experience in the market, the volume of gross sales, etc.
Finally, other possible damages could be those related to ‘moral hardship’, pursuant to which the injured party can recover additional compensation on the grounds that the unlawful conduct has substantial emotional disturbance.
IX PASS-ON DEFENCES
Although the Antitrust Law does not expressly regulate the existence of pass-on defences, the matter has been analysed by the courts. In that regard, when analysing the Autogas/YPF case (analysed in depth in Section X, infra), the appellate court contemplated the pass-on defences invoked by the accused party and only accepted 30 per cent of the alleged damages regarding that specific matter, since it considered that the remainder had been borne by the final customers.
X FOLLOW-ON LITIGATION
Even though civil claims regarding antitrust matters can be filed without a prior administrative procedure before the Antitrust Commission, in those cases where the regulator has already analysed the matter, the resolution issued by the Antitrust Commission could have res judicata effect regarding the conduct. This resolution would be used as a basis for the civil court’s decision and as evidence for the parties.
The most relevant precedent for a private party seeking damage compensation results from anticompetitive behaviour previously investigated and punished by the Antitrust Commission. Such was the situation in the YPF/Autogas case.9 The original conduct investigated by the Antitrust Commission was the practice of exporting a large amount of liquid petroleum gas (LPG) at prices that were lower than those charged for LPG in Argentina by YPF, the national gas company, which was controlled by private funds at the time of the alleged wrongful conduct. Further, YPF’s export contracts prohibited the re-import of LPG to Argentina. The Antitrust Commission concluded that this conduct was harmful to the general economic interest and ordered YPF to cease its price discrimination between the domestic and export markets and to eliminate the prohibition of re-importing LPG. Additionally, it imposed on YPF a fine of 109,644,000 pesos. The decision was upheld by the Supreme Court.
Based on this case, a private company claimed that it had been affected by YPF’s anticompetitive conduct. Auto Gas based its claim on the abuse of dominant position of YPF having had a twofold effect: an undue increase in prices and a diminishment in the quantities of LPG that were commercialised by Auto Gas. When analysing the case, the court left in record that it would not analyse YPF’s anticompetitive conduct, since that had already been analysed and sanctioned by the Antitrust Commission and ratified by the Supreme Court. Thus, it considered the existence of the conduct had already been proved, as well as the fact that it had been performed by means of deceit. The analysis was therefore focused on whether there had been damage to Auto Gas and whether it had been caused by the already proven act performed by YPF. Regarding the damage caused by the abuse of dominant position, Auto Gas considered that it consisted of two items.
The first was the difference in prices that Auto Gas had to pay between the LPG’s local price and the price that had been set up for the exporting of the product. On this point, the court took into account what had been informed by the Antitrust Commission regarding whether such increase in prices had been transferred to the final price paid by the consumers. Thus, the parties who would have been harmed by YPF’s conduct would not have been the LPG distributors, but the final customers, who had to endure the price increase. After analysing the financial expert witness reports, the court decided to accept 30 per cent of the claim.
Second, within the abuse of dominant position was the loss of profits from the reduction in the amount of LPG that was commercialised by Auto Gas, due to YPF’s practices. The court took into account the analysis performed by the financial expert witnesses regarding the financial records of the company, which showed that this loss of profit rose to 15 per cent of the requested amount, due to the relationship between the cost of the product and the financial cost for its commercialisation. The Court also analysed other types of damages, such as those that stemmed from the breach of contract or those that originated from the alleged supply cut performed by YPF to Auto Gas.
As a result of this analysis, Auto Gas was awarded 13,094,457 pesos.
Regulatory Decree No. 89/2001 provides in its Section 12 that the parties may request the confidentiality of the information submitted in the proceeding, when its disclosure may cause damage to the party’s interest. Although this provision is primarily applicable to the merger review process, it could be understood that those provisions would be analogous applied to claims or investigations carried out by the Antitrust Commission in order to safeguard commercial secrets of the involved parties.
When a private claim is filed before the courts and the opinion of the Antitrust Commission is used, it should not contain sensitive information, and parties can request confidentiality if any trade secret or other confidential information is disclosed in the opinion. Likewise, all the dockets pending before the Antitrust Commission are secret, and only the parties can access them.
Finally, and pursuant to Section 6 of Law No. 23,187, it is a specific obligation of lawyers to preserve attorney–client privilege, unless otherwise authorised by the interested party (i.e., the client). Likewise, Section 7 provides as a right of lawyers to keep confidential information protected under attorney–client privilege. Furthermore, Section 444 of the Civil and Commercial Procedural Code provides that a witness may refuse to answer a question if such answer would entail revealing information protected under a professional secret (i.e., including attorney–client privilege).
XII SETTLEMENT PROCEDURES
Under Argentine Law No. 26,589, pre-judicial mediation proceedings are mandatory for disputes of an economic nature (unless otherwise exempted by said law, such as criminal or family claims) as a prerequisite for having access to the courts. Mediation purports to settle disputes out of court by means of direct communication between the parties, assisted by a neutral third party (mediator), with the aim of the parties reaching a mutually beneficial settlement. A settlement in mediation has res judicata effect (claim preclusion). If no agreement is reached, the mediator will formally close the mediation proceedings and the claimant will then be able to pursue its case before the courts.
Pursuant to Section 360 of the Civil and Commercial Procedural Code, before the beginning of the evidence period, the judge invites the parties to settle. The judge can order the parties to go to mediation if the circumstances of the case justify it. If the parties cannot settle the matters in dispute, the trial continues.
Furthermore, the parties are able to settle the matters in dispute at any time during the procedure. That settlement must be homologated by the judge.
Argentina does not have an arbitration law. Arbitration is only recognised as a specific procedure within certain provincial procedural codes on civil and commercial matters. According to the Civil and Commercial Procedural Code all disputes may be resolved by means of arbitration except those that cannot be subject to a party settlement. For example, the following disputes may not be resolved through arbitration:
- a criminal actions;
- b family law issues;
- c inheritance matters;
- d disputes over assets or rights that cannot be traded; and
- e where the dispute touches upon a matter of public policy.
Despite the fact that the Civil and Commercial Procedural Code rules the arbitration procedure, parties generally agree to apply institutional or ad hoc arbitration rules, which are also accepted by local law. Both legal and amiable composition arbitrations are admitted in Argentina; however, arbitration is not a common method of dispute resolution in private antitrust litigation in Argentina.
XIV INDEMNIFICATION AND CONTRIBUTION
In principle, the injured party is only able to request full compensation from the party that causes the damage by means of an anticompetitive practice. The link between the damage and the anticompetitive practice must be proved for compensation to be granted.
Despite the lack of precedent regarding joint and several liability in Argentina regarding antitrust matters, pursuant to civil general principles,10 if the Antitrust Commission or the courts determine that several persons have jointly caused damage, they would be jointly and severally liable for damage to the injured party and the latter would be enabled to assert a claim against one or all of the defendants.
However, as analysed in Section II, supra, under the new Draft Bill, all responsible companies will be jointly liable for the payment of the damages or fines, as per Section 51-quater. Furthermore, in addition to said damages, Section 51-ter sets out that a civil fine in favour of the injured party may also be granted, depending on the gravity and circumstances of the case.
Specifically referring to joint responsibility, Section 51-quater of the Draft Bill also regulates the scenario posed as regards leniency applicants, setting out that they ‘may be exempted or their liability reduced’ as regards damages and fines. The exemption or reduction would depend on the degree of the overall type of leniency or immunity granted to the company. The same section sets out an exemption to said rule, maintaining its liability to (1) its direct or indirect buyers or suppliers and (2) any other injured parties only when the full reparation of the damages of the conduct could not be obtained from the other companies involved in the same anticompetitive conduct.
XV FUTURE DEVELOPMENTS AND OUTLOOK
The Draft Bill by the new administration of the Antitrust Commission provides an improved and more detailed damages scheme, which seeks to address some of the unknown variables that have hindered progress regarding this type of litigation in antitrust matters as well as foster a greater link between the investigations to be carried out by the Antitrust Commission and court rulings.
This initiative, alongside a renewed interest for collusion investigations in Argentina, paves the way for a more pronounced interest in private litigation in the years to come.
1 Miguel del Pino is a partner and Santiago del Rio is a senior associate at Marval, O’Farrell & Mairal. The authors would like to thank Agustina Redondo for her collaboration in the drafting of this chapter.
2 Advisory Opinion No. 52 dated 10 July 2000, ‘Thompson CDF and Racal Electronics PLC re. Request for an Advisory Opinion’; Advisory Opinion No. 68 dated 8 October 2000, ‘Alcan Aluminum and Alusuisse Lozna Group AG re. Request for an Advisory Opinion’.
3 Case ‘Halabi, Ernesto c/ PEN - Ley 25.873 - Dto. 1563/04 s/ Amparo Ley 16.986’.
4 Resolution SCI No. 124 dated 25 July 2005 ‘Loma Negra Cia. S.A.; Cemento San Martín S.A., Juan Minetti S.A., Corcemar S.A., Cementos Avellaneda S.A., Cementos del Gigante S.A. y Petroquímica Comodoro Rivadavia S.A. re. Infraction to Law No. 25,156 (C. 506)’, CNDC Opinion No. 513 dated 25 July 2005.
8 Supreme Court of Justice, ‘Asociación Protección Consumidores del Mercado Común del Sur e/ Loma Negra Cía. Industrial Argentina S.A. y otros’ dated 10 February 2015.
9 Commercial Court No. 14 on 16 September 2009, ‘Auto Gas S.A. c/ YPF S.A. y otro s/ ordinario’.
10 Section 827 et seq. and Section 1751 of the Civil and Commercial Code.