Increasing digitalisation across the economy has led to increasing prioritisation of digital markets as an area of focus for competition authorities, both in Latin America and the Caribbean and globally. Alongside this, much attention has been paid to the distinctive characteristics of digital markets identified in the academic literature and by competition authorities, and which shape competitive dynamics in the sector and may cause competition concerns to arise (e.g. see (OECD, 2022[1])).
Accordingly, authorities have launched a broad range of competition enforcement and merger investigation cases in digital markets across many jurisdictions. This has also been the case in LAC, where there has been increased activity in digital markets from competition authorities across the region, although to varying degrees in different jurisdiction.
These cases may result in authorities imposing or accepting remedies targeted at addressing the specific competition concerns identified in an abuse of dominance investigation or eliminating any competitive harm that may result as a consequence of a merger.1 In light of this, this paper focuses on remedies in digital markets, to provide a picture of how competition authorities, both within LAC and beyond, are addressing competition concerns in this sector. In doing so, this paper will draw out key aspects of competition authorities’ responses in the region, as well as highlighting opportunities to address certain challenges and enhance enforcement efforts going forward.
For the purpose of the paper, remedies are defined broadly, and include those arising from both competition enforcement and merger cases. In competition enforcement, this includes remedies imposed by a competition authority or court at the conclusion of an abuse of dominance proceeding, or commitments voluntarily offered by the party, which generally seek to address specific competition concerns arising from the abuse of a dominant position. In merger review, competition agencies may impose or accept remedies to eliminate competitive harm that may result as a consequence of a merger, allowing for the approval of mergers that would otherwise have been prohibited by eliminating the risks that a given transaction may pose to competition.
The specific remedies used to address competition concerns in digital markets may take a range of forms, such as behavioural, structural or demand-side remedies, or be imposed through a variety of different processes, such as interim measures or commitment procedures (see definitions in Box 1 below). In some cases, cases remedies may have extraterritorial or cross-border effects, particularly where large platforms operate across jurisdictional borders, requiring international co-operation to minimise inconsistencies and ensure effective outcomes across multiple jurisdictions.
Increasingly, large digital platforms are not only being required to change their practices in line with remedies introduced as part of abuse of dominance or merger review proceedings, but also in response to new “ex ante” regulations in digital markets. While such regulations have not been implemented in LAC to date, they are under consideration in at least one jurisdiction in the region. As seen elsewhere, there can be some overlaps in the types of conduct or behaviour that are addressed through both traditional competition law enforcement and ex ante regulation (OECD, 2024[2]).
This note builds on previous work by the OECD looking at both remedies and digital markets. In recent years, the OECD has convened various discussions on remedy design and implementation, including Roundtables on Remedies in merger cases (2012[3]) and Remedies and commitments in abuse cases (2022[4]). The OECD also has an extensive programme of work looking at digital markets, including Roundtables on Abuse of dominance in digital markets (2021[5]) and Ex ante regulation and competition in digital markets (2021[6]), and publishing the OECD Handbook on Competition Policy in the Digital Age (2022[1]) as well as Competition Policy in Digital Markets: The Combined Effect of Ex Ante and Ex Post Instruments in G7 Jurisdictions (2024[2]). In 2024, the OECD-IDB Latin American and Caribbean Competition Forum (LACCF) convened a roundtable on Interim measures in abuse of dominance investigations in Latin America and the Caribbean (OECD, 2024[7]) which considered some measures imposed in digital markets in the region.
The note is structured as follows:
Section 2 sets out the particular competition concerns in digital markets which have been the focus of competition authorities in LAC and the types of remedies and commitments which have been put in place to address these.
Section 3 identifies key trends emerging in LAC from authorities’ approaches to remedies in digital markets, including the prevalence of different types of remedies, the use of interim measures and commitment procedures, and the extent of extraterritorial effects.
Section 4 concludes.