In light of increasing digitalisation, competition authorities in Latin America and the Caribbean (LAC) have shown a growing focus on addressing competition issues in digital markets. In some cases, this has resulted in authorities imposing or accepting remedies, resulting from an antitrust enforcement or merger review investigation, to address specific competition concerns in the sector.
The complex nature of digital markets, and of the competition concerns that may arise, can increase the challenges involved in designing appropriate remedies. However, competition authorities can consider a range of tools which may help to mitigate potential risks and promote effective competition in digital markets.
The main findings of the paper are as follows:
In line with global trends, competition authorities in LAC have taken a growing number of cases in digital markets, which have targeted issues such as the use of exclusivity agreements and most-favoured-nation (MFN) clauses, the use and combination of data, tying and bundling practices and self-preferencing behaviour.
This is a recent and emerging trend in LAC, with most key cases taking place in the past five years across a number of jurisdictions and with other jurisdictions showing an increasing interest in the sector. While some high-profile cases address the conduct of global ‘big tech’ platforms, many cases focus on so-called ‘local techs’ who exhibit market power at the local level.
Competition concerns arising in digital markets have most commonly been addressed using behavioural remedies with levels of complexity, both within and beyond LAC.
To support the design of effective remedies, competition authorities can consider assessing the implementation of similar remedies in other jurisdictions, or consulting with industry stakeholders or technical experts. In some cases, interim measures and commitment procedures can support the resolution of competition concerns in a timely and collaborative manner, while ongoing monitoring and ex-post assessment can also be useful tools to evaluate the effectiveness of remedies.
While many digital platforms’ operations extend across jurisdictional borders, there are limited instances of platforms voluntarily applying remedies extraterritorially. This means that competition authorities in LAC will not necessarily be able to rely on enforcement efforts in other jurisdictions. This also points to a need for international co-operation and co-ordination to minimise divergences.
Given the ongoing impacts of digitalisation across the economy, addressing competition concerns in digital markets can be expected to remain relevant for competition authorities in LAC and beyond.