Contributed By Rebaza, Alcázar & De Las Casas
As opposed to most countries, Peru currently handles antitrust litigation through proceedings conducted before an administrative authority: the National Institute for the Defence of Competition and Intellectual Property (INDECOPI). This entity is in charge of supervising and challenging, among other things, conduct affecting free trade, antitrust and fair competition.
INDECOPI decides whether an act has infringed antitrust regulations through two instances. The first instance is the Commission for the Defence of Free Competition (the Commission), and the second is the Competition Defence Tribunal (the Tribunal). Any rulings issued by the Tribunal are final at the administrative level, although they can be challenged before the courts through a contentious administration proceeding (proceso contencioso administrativo, PCA).
Notably neither the Commission nor the Tribunal are entitled to award damages to a plaintiff. Therefore, for the recovery of damages arising from a violation of antitrust law, a claim has to be filed before the Peruvian courts. In most cases, the success of such a claim would depend on whether or not the defendant committed a violation of antitrust law, which would be decided by INDECOPI.
IN January 2019, INDECOPI’s Commission issued fines to 63 Peruvian gas companies and 29 of their employees totalling PEN459 million (approximately USD140 million) for fixing prices for the sale of natural gas for vehicles (GNV). Per INDECOPI’s investigation, as a result of these anti-competitive actions, the cartel imposed price increases (surcharges) of up to 38% per cubic metre of GNV on its customers. Since the most important players in the GNV market were part of this cartel, the competition in this market was heavily restricted; consumers did not have any other real options for purchasing GNV. The cartel operated in Lima and Callao between July 2011 and May 2015, and is supposed to have generated illegal profits for its members of around PEN152 million (approximately USD46 million).
The infraction was detected by the Technical Bureau of the Commission (the Technical Bureau), an entity within INDECOPI in charge of supervising and monitoring activities that may infringe antitrust regulations. The Technical Bureau is also in charge of prosecuting any entities that may be breaching antitrust laws. Thus, in May 2015, the Technical Bureau initiated a preliminary investigation consisting of a series of unannounced visits to the companies allegedly involved in the cartel. Per the information contained in the Commission’s resolutions, through such visits the Technical Bureau obtained several copies of emails, as well as other electronic records, that revealed secret price-fixing agreements between competing companies in the GNV market.
In addition to the fines imposed, the Commission ordered the entities involved in the cartel to implement the following corrective measures: the companies were obliged to train their personnel in charge of setting prices on the rules of free competition and implement a compliance program for the detection, mitigation and reporting of conduct that could result in anti-competitive acts, including the appointment of an independent compliance officer.
Several of the companies involved have appealed the Commission’s decision and the Tribunal’s resolution is pending.
In May, the Peruvian Congress approved a mergers and acquisitions control bill that will introduce a new regime applicable to all mergers & acquisitions transactions involving companies that exceed certain gross income thresholds. However, due to technical issues within the Congress, the bill has not, as of September 2019, come into effect. It is very likely that a mergers and acquisitions control bill will be operating as of 2020.
This bill introduced a relevant change in Peruvian regulation, this kind of control is currently applicable only to companies engaged in the distribution, transmission and generation of electricity. The negative effects on competition that a merger or acquisition in any other market may have can be reviewed and challenged ex post only (ie, antitrust authorities are allowed to challenge the conduct itself, but not the merger or acquisition operation that enhanced the market share or dominant position of the entities involved in the conduct).
Once effective, this bill will generate a significant workload for INDECOPI which will have to hire and train staff in new areas of expertise, such as instances of economic concentration that could affect free competition in Peru.
Also, recently (on August 2019), INDECOPI published a draft bill which intends to amend all antitrust proceedings by having those proceedings be decided by a single instance for all cases. This initiative is based on a recommendation made by the Organisation for Economic Cooperation and Development OECD) and aims to reduce the length of INDECOPI's antitrust proceedings through the implementation of a legal framework that allows for the speedier dismantling of cartels. It is planned that this amendment will also be applicable to the mergers and acquisitions control.
The main argument offered by INDECOPI for this change is that approximately 90% of the appeals against resolutions issued by the Commission are rejected by the Tribunal. Also, this initiative intends to create a unified and specialised team able to achieve a resolution more quickly in these cases, instead of having two separate bodies analysing the same case. Finally, it is INDECOPI's position that this initiative does not conflict with the constitutional right to the plurality of instances – which applies to administrative proceedings that impose penalties or fines – since there will be always the possibility of challenging the Tribunal’s decision before the Peruvian courts.
As mentioned above in 1.1 Recent Developments in Antitrust Litigation, INDECOPI is not entitled to award damages. It is only able to order corrective measures which are intended to reverse the detrimental effects created by anti-competitive behaviour or prevent them from appearing in the market. These corrective measures may consist of, for example, an order to stop the wrongful activity, causing the entities involved in the illegal conduct to contract under specific terms or declaring the unenforceability of a contractual provision.
Hence, damages claims derived from breaches of antitrust law have to be conducted through a civil lawsuit before the Peruvian courts. In most cases, such a lawsuit would be brought under general civil torts regulations and, therefore, the success of such a claim would depend on whether the plaintiff was able to prove that the following requirements were met:
Since damages indemnification can be pursued by means of the PCA (in which INDECOPI’s rulings are revised) or through an independent civil action, both follow-on and standalone claims are available under Peruvian laws.
That being said, decisions on the unlawfulness of anti-competitive behaviour do not necessarily require INDECOPI’s opinion; however, plaintiffs are more likely to get a favourable decision in connection with damages after an infringement of the competition regulations has been declared by the competent authority (INDECOPI).
There are no specialist competition courts in the Peruvian judicial system, either to decide whether conduct has breached antitrust regulations or to decide whether damages should be awarded based on that alleged breach. There is also no procedure for transferring cases between different courts in Peru.
However, it should be noted that there are specialist courts in charge of reviewing rulings issued by administrative entities (such as INDECOPI). Nevertheless, the specialisation of these courts is not based on competition law, but on general public law.
Decisions issued by the Commission or the Tribunal are not final (ie, they can be reviewed before the Peruvian courts through a PCA).
Decisions issued by a foreign national competition authority which sanctions a person as a consequence of the breach of Peruvian antitrust law are not binding before Peruvian courts, as INDECOPI and the Supervisory Agency for Private Investment in Telecommunications (OSIPTEL) have primary and exclusive competence to control antitrust behaviour in Peru, OSPITEL is competent only in cases involving entities in the telecommunications market. Foreign rulings awarding damages are enforceable in Peru provided that such rulings follow the judicial proceedings required for them to be acknowledged by Peruvian Courts (exequatur).
The Commission may file civil damages claims for consumer redress in defence of the diffuse and collective interests of consumers. For further detail on this, please refer to 3.1 Availability below.
At the administrative level, INDECOPI has to prove that a breach of the antitrust provisions has occurred and the involvement of the persons who are alleged to be liable for the breach. Notwithstanding this, the investigated party or third parties appearing in the process may offer evidence in an attempt to prove otherwise.
At the judicial level, the general rule is that the entity alleging something is also responsible for proving that allegation, unless the law determines otherwise. The relevant standard of proof is that of reasonable judicial assessment, taking into account all the evidence provided by the parties involved in a proceeding.
The pass-on defence has not been reviewed under Peruvian jurisprudence and there are no statutory instruments that specifically refer to it.
Any person can report an alleged breach of antitrust regulations to INDECOPI; the Technical Bureau will then be in charge of analysing whether the report contains sufficient grounds to initiate a formal investigation. If this is the case, the Technical Bureau will take appropriate action to prosecute the case and report its findings to the Commission so that it can decide whether an actual breach of antitrust regulations has occurred or not. The legal requirements for reporting an infringement of antitrust regulations are identification of the reporting party, identification of those responsible for the breach of antitrust regulations, provision of reasonable evidence for the existence of anti-competitive behaviour and payment of the administrative fee.
Any person or legal entity that considers themselves to have suffered damages as a result of the anti-competitive behaviour of another economic agent may file an indemnification claim for damages before the courts (please refer to 2.1 Legal Basis for a Claim).
In this sense, there is no difference between claims from direct or indirect purchasers as long as they are able to show a causal relationship between the damage and the declared anti-competitive behaviour. The fact that there is not a direct commercial relationship between the parties is not enough to prevent an indirect purchaser from seeking damages from an indirect provider.
The administrative proceedings followed before INDECOPI regarding breaches to antitrust regulations have an estimated duration of 18–24 months.
The estimated durations of various judicial proceedings are set out below.
Civil Claim of Indemnification for Damages
For summary proceedings, which relate to damages claims in the civil courts of less than PEN42,000 (approximately UDS13,000), proceedings in the court of first instance should take six to twelve months, as should those in a court of appeal.
For abbreviated proceedings, which relate to damages claims in the civil courts of more than PEN42,000 but less than PEN420,000 (approximately USD13,000 to USD130,000), proceedings in the court of first instance should take 12–24 months, those in a court of appeal should take six to twelve months and those in the Court of Cassation should take 12–18 months.
For knowledge proceedings, which relate to damages claims in the civil courts above PEN420,000 (approximately USD130,000), proceedings in the court of first instance should take 18–36 months, those in a court of appeal should take 12–18 months as should those in the Court of Cassation.
Contentious Administrative Proceeding (PCA)
Special proceedings take 12–24 months before a court of first instance, 12–18 months before a court of appeal and 12–18 months before the Court of Cassation.
Judicial proceedings are not suspended prima facie during parallel investigations by INDECOPI since each of them protects different rights and legal interests. The first seeks to repair damages caused to a person or legal entity while the other intends to protect free competition in the market by sanctioning the infringers of the applicable regulations.
At any time, parties may apply for an order to stay and it may be granted at the judge’s discretion. In such cases, a pending resolution from INDECOPI seeking to determine whether a breach of antitrust regulations has occurred or not is often regarded as a reasonable ground to request a stay of the judicial procedure. In practice, such argument suffices for the court to suspend the damages proceeding until a final decision is issued by INDECOPI.
Class actions are not regulated in Peruvian legislation.
Nevertheless, as mentioned above in 2.3 Decisions of National Competition Authorities and as prescribed in Article 52 of the Repression of Anticompetitive Conduct Act Unified Text (the LRCA), the Commission, after a favourable report from the Technical Bureau, is entitled to file civil damages claims for consumer redress in defence of the diffuse and collective interests of consumers, effectively a form of state class action.
There is no special certification process for the Commission to file a civil damages claim on behalf of a group of consumers. However, Article 82 of the Peruvian Procedural Civil Code (CPC) provides that a synopsis of the claim must be published in the Official Gazette “El Peruano” or in another newspaper that publishes court notices in the corresponding judicial district.
In cases where the claim is dismissed, the verdict will be appealed to the relevant superior court, in which case the court will review and analyse that verdict in order to verify its legality.
There are no special rules regarding judicial oversight or involvement in the settlement of claims regarding diffuse and collective interests of the type mentioned in 3.1 Availability.
Strikeout and summary judgment are not regulated in Peruvian legislation. Nevertheless, a damages claim can be subject to an abbreviated proceeding (proceso abreviado) or a summary proceeding (proceso sumarísimo) depending on the amount of damages involved in the claim. Please refer to 2.6 Timetable above for a more detailed description.
A complaint before INDECOPI, for the purposes of requesting that the Technical Bureau begin an investigation, may be filed before any of INDECOPI’s offices, which are located through Peruvian territory.
In the case of a PCA or an independent damages claim (a civil action), the jurisdiction of Peruvian courts is decided dependant on three main elements: territory, matter and amount. Territory is defined, in the case of a PCA, on the basis of the place where the Commission or Tribunal’s resolution was issued or, in the case of a damages claim (or as an alternative in cases of PCA) the location of the residence of the defendant. Matter is defined on the basis of the legal nature of the claim. In the case of a PCA, a court specialising in administrative matters would be competent or, if a court of such kind is not available, a civil or a mixed court would be competent. In the case of a damages claim, a civil court would be competent. Finally, depending on the amount involved in the proceeding, the claim must be filed before a professional lower court (in cases of damages claim up to approximately USD65,000) or a specialised court (in cases of damages claim above approximately USD65,000 or in cases of a PCA).
The applicable law for all the aforementioned procedures is the Peruvian law.
Breaches of antitrust law are subject to a statute of limitation of five years after the last act of illegal conduct was committed.
PCA claims are subject to a statute of limitation of three months after the relevant ruling was notified or known to the relevant parties.
Damages claim are subject to a statute of limitation of two years from the date the damages were caused.
There are no rules set forth in Peruvian legislation regarding a procedure for the disclosure of documents.
However, a party can request that a judge compel a third party to produce any documentation in that third party's possession, provided that the documentation in question belongs to, or is manifestly incumbent upon or refers to a party in a given proceeding. The applicant must be certain of the existence of the relevant document in advance to filing a request of this nature. This document production procedure can be performed before a proceeding is initiated through an early proof request.
Professional secrecy is a constitutional right established in the Political Constitution of Peru. Nevertheless, documents and information produced by the parties during a judicial proceeding are considered public by general rule, therefore any third party can have access to them.
If certain documents or information are subject to professional secrecy and are threatened with disclosure in a judicial proceeding, the party interested in keeping that information confidential may request that the court withhold those documents or that information from disclosure and/or exhibition (even through early proof). Considering that there is no legal statutory basis regarding a request of this kind, the courts will decide on the matter on a case-by-case criterion.
The LRCA regulates two different kinds of agreements that any person may enter into with the Commission: settlement agreements and leniency agreements.
According to the Article 25.1 of the LRCA, the settlement agreement procedure allows any person against whom an investigation has been initiated to offer the Technical Bureau, individually or jointly with other persons, a commitment to implement effective corrective measures to counteract the effects of an alleged infringement of antitrust provisions. This is done in exchange for the settlement and early termination of the antitrust proceeding. The Technical Bureau will analyse the aforementioned offer and, if it is deemed satisfactory, may propose its approval to the Commission. The Commission, at its sole discretion, can approve or deny such an offer.
The leniency agreement procedure allows any person against whom an investigation has been initiated to request exoneration from sanction by the Technical Bureau. This is done in exchange for the contribution of evidence that will aid in the detection and proving of a collusive practice, as well as ensure the sanction of other liable persons.
The main difference between a settlement agreement and a leniency agreement is that through the settlement agreement, the antitrust proceeding ends at an early stage; while through the leniency agreement, the applicant may be exempted from sanction, but the administrative proceeding carries on with regard to the other persons under investigation.
In the case of settlement agreements, statements and documentation provided during the proceeding by the person requesting the settlement can be used as evidence (in other proceedings) of the liability of other parties under investigation, provided that they have not been declared as confidential, as set forth in Article 25.8 of the LRCA.
On the other hand, and according to the Leniency Programme Guide approved by Resolution No. 059-2017/CLC-INDECOPI and published by INDECOPI, the Commission and its Technical Bureau are obliged to protect from disclosure the identity of the applicant for leniency; the content of the leniency request; the agreement on the reduction or elimination of the sanction and, in general, any document or proof given by the applicant on its leniency request filing.
If the information provided by the applicant is essential for the prosecution of other parties under investigation, and if the Technical Bureau is not able to obtain such information from other sources, the applicant must waive its confidentiality rights with regards to the portion of the information that is essential to the administrative proceeding.
In both, administrative and judicial proceedings, witnesses of fact are relied on. Whenever a witness is called by any of the parties to a proceeding, this process is accompanied by the filing, in writing, of a list of the questions that will be asked. In the proceeding itself, witness statements are given orally and cross-examination is available.
On the other hand, parties may request the production of evidence by other parties. Furthermore, the court may compel a witness or any other third party to provide evidence when it becomes aware of the existence of that evidence.
Expert witnesses are not usually relied on in antitrust administrative proceedings. For the purpose of these proceedings, the Technical Bureau issues a report explaining its analysis of the investigated behaviour and evidence. Parties may call expert witnesses themselves and INDECOPI may, at its own discretion, appoint an expert witness if it deems it necessary.
In judicial proceedings, any of the parties may call an expert witness and the court will accept this in cases where it considers it is appropriate, helpful and lawful. Usually, expert witnesses are relied on to determine technical issues regarding damages quantification.
Evidence by experts is provided to court through reports and/or oral statements. They are subject to cross-examination by the parties’ counsels.
Peruvian courts do not require experts to produce joint statements indicating the areas in which they agree or disagree in advance of a trial. Courts do not adopt alternative methods of hearing expert evidence such as the giving of concurrent statements by two of more experts in the same field.
In Peru, damages are assessed according to the following:
Exemplary or punitive damages are not available under Peruvian law.
The pass-on defence has not yet been applied for or alleged in a Peruvian court.
Hypothetically, the pass-on defence could be a way to prove that the damages were not suffered by the direct purchaser of the infringing entity's goods or services (or at least not in the amount of the claim). Therefore, it could be used as a defence to reduce the potential indemnification amount. However, it would not be a way to avoid the administrative liability derived from the infringement since the anti-competitive behaviour did occur (eg, fixing prices with competitors).
According to the CPC, interest is applicable to damages indemnification granted by the court. It is accrued from the moment the damage occurred until the effective payment and at the legal rate established by the Central Reserve Bank of Peru (as of October 2019, legal rates are 2.45% annually for the national currency and 0.95% annually for a foreign currency).
Liability declared by virtue of a resolution issued by the Commission or the Tribunal is individual, and it must be determined on a case-by-case basis for each of the parties involved in the administrative proceeding.
In the case of a damages claim, liability may be joint and several if the courts determine that there was more than one person that caused the damages (which may be the case when the damages are caused by, for example, a price fixing scheme).
Immunity conferred to applicants by virtue of a leniency agreement does not cancel or limit liability for damages.
Contribution proceedings are not regulated under Peruvian legislation. However, in the case of a damages claim, the plaintiff may include a plurality of parties as defendants, provided that all of them have a causal link with the damages caused to the plaintiff.
Under general civil law regulations, if damages are produced by several parties, but only some of them actually pay the full indemnification amount, then those paying parties may request, from the other non-paying parties, the reimbursement of the proportion of the indemnification amount paid on their behalf. This proportion will be established by the court according to the degree of the damages produced by each party and, if this degree cannot be determined by the judge, all the parties will be liable in equal proportion.
Defendants in a damages claim are entitled to request that the judge include other persons as defendants (even if the plaintiff has not included these additional persons in its claim) provided that they offer sufficient grounds for the court to believe that these new defendants are also responsible for the damages caused to the plaintiff.
Injunctions are available during administrative proceedings before INDECOPI, PCA proceedings and civil proceedings for damages. The granting of an injunction will require the applicant to give evidence showing that the complaint or claim appears to be lawful, there is risk of the final ruling not being effective if the injunction is not granted and it is possible to grant the requested injunction (in the case of an administrative procedure) or the injunction requested seems reasonable (in the case of a PCA or a damages claim).
According to Articles 23.1 and 23.5 of the LRCA, in an administrative proceeding, a whistle-blower, or a third party with a legitimate interest, can make a request to the Commission for an injunction, which can be granted or rejected for a term of no greater than 30 business days (such term can be renewed once and for the same period). If the injunction is granted, the affected party can appeal the decision; however, that filing does not stop the execution of the injunction, according to Article 23.7 of the LRCA. Peruvian antitrust law does not specifically indicate if an injunction can be granted or rejected without notice to the affected party. However, in general practice, it does happen in this manner. Also, for this type of proceeding, the applicant is not required to post a warranty of any kind. However, if the affected party is found not liable for the alleged misconduct and the injunction caused that party damages, then it will be entitled to file a damages claim against the applicant for the injunction.
In a judicial proceeding, an injunction can be requested by any party; or by the claimant even before the judicial proceeding is formally initiated, provided that the claimant has filed its claim no more than ten business days before the desired execution of the injunction. If the injunction is granted, the affected party can file a motion to have it overturned within five days of its notification, as set forth in Article 637 of the CPC; however, this motion does not stop the execution of the injunction. In a judicial proceeding, an injunction is granted or rejected without notice to the affected party, according to Article 637 of the CPC. Also, the applicant of an injunction is required to post a warranty, and this warranty will be foreclosed on if the affected party is found non-liable for the claim and the injunction caused that party damages.
There are no alternative dispute resolution methods available to determine whether a breach of Peruvian antitrust regulations has occurred, either at the administrative level (INDECOPI) or at the judicial level (PCA).
In the case of a damages claim, it is mandatory for the plaintiff to file for an out of court settlement, to be discussed with the plaintiff at a conciliation centre prior to the formal initiation of judicial proceedings. Only if these discussions are not successful (ie, the parties do not reach an agreement) will the plaintiff be entitled to file its claim before the courts.
Parties involved in damages claims may submit their case to an arbitration court, if decided jointly.
Peruvian legislation contains no statutory provision specific to litigation funding, either for administrative sanctioning proceedings or judicial claims for damages.
Litigation funding in Peru is mostly directed towards arbitration procedures. Judicial proceedings do not attract the same level of interest because the companies or funds involved in this activity find the length of time necessary to resolve antitrust cases makes for an unattractive investment.
In administrative proceedings, the costs incurred are borne by the respective parties, unless the authority considers any of the parties has acted in a malicious or reckless way. In such cases, that party will have to bear all the costs and legal fees involved in the administrative proceeding. For such purposes, it has been understood that a party acts in a malicious or reckless way if, for example, that party files a report of an alleged anti-competitive behaviour without any support in fact and/or law. In such cases, the administrative authority will have to prove that the party bearing the costs had the actual intention to cause harm to the other party.
INDECOPI is entitled to impose penalties in order to force the relevant party to pay the costs and fees of the administrative proceeding. Also, INDECOPI may initiate a different administrative proceeding for the purpose of collecting such costs and fees.
In judicial proceedings, as a general rule, the defeated party assumes all costs and legal fees derived from it, unless otherwise decided by the court. Costs derived from judicial proceedings may be collected through enforcement proceedings. In such proceedings, any measure destined to secure the payment may be granted including seizure, injunction, etc.
Appeals are available in both administrative and judicial proceedings. Appeals of resolutions issued by the Commission are filed before the Tribunal. In cases where an administrative proceeding terminates with a final decision from INDECOPI’s Tribunal, any of the parties may file a PCA before a specialised judge in a PCA.
The bases for administrative appeal are different assessments of the evidence provided in the proceeding or different interpretations or applications of the law. Another type of challenge that is available to the parties in an administrative proceeding is a reconsideration recourse (reconsideracion) under which any party may request that the Commission itself (and not the Tribunal) reviews the resolution issued in the first instance based on new evidence, produced or found after the administrative proceeding began.
In a judicial appeal, the first requirement is to specify the request which may be the nullification of procedural acts wrongly performed (or even the procedure itself) according to the CPC, or the revocation of the decision issued in the first instance.
This appeal is filed before the same judge that adjudicated in the first instance and it is resolved by the immediately superior judge (the superior court in the case of a PCA) and shall be based on a different interpretation or application of the law or facts discussed in the proceeding. Also, the appellant shall describe the tort or prejudice suffered as a consequence of the appealed decision.
As an exceptional recourse, any of the parties have the possibility to challenge the superior court’s decision through a cassation which shall be based only in points of law or mandatory judicial precedents. The cassation recourse is resolved by the Supreme Court.