MEXICO Law and Practice Contributed by: Agustín Aguilar López, Carlos García Cueva, Claudio Catalán Arvide and Joana Karime Novia Ibarra, Aziz & Kaye Business Law
on the fees that the prevailing party has paid to its attorneys during the trial of claim for damages.
In spite of earlier drafts of the reform, under the new FECL there were no changes to conducts that amount to abuse of dominance. It is worth noting that in Mexi - co, there are no specific provisions in competition law that refer to exploitative conduct. However, the new framework includes several changes related to abuse of dominance. For example, an additional object or effect related to the alleged offender’s capability to limit competition is included, additional factors for determining dominance and criteria for joint domi - nance are elevated to the new Law from regulatory provisions. This context reflects a growing emphasis on abuse of dominance cases alongside traditional cartel enforcement. The pharmaceutical and healthcare sectors remain a priority, particularly regarding cartel conduct in public procurement and drug distribution, with ongoing and new investigations in these areas. Public procure - ment and financial services also continue to be major enforcement and litigation arenas, especially con - cerning bid rigging and barriers to entry. The reform’s expanded theories of harm now encompass exploita - tive as well as exclusionary conduct, and additional factors for determining substantial market power have been incorporated, reflecting a growing emphasis on abuse of dominance cases alongside traditional cartel enforcement. That said, it remains uncertain what criteria the newly elected judges will follow when applying the enhanced FECL provisions. Mexico recently held unprecedented elections for roughly 2,600 judicial positions, including nine Supreme Court justices, marking the first nation - al-level democratic selection of judges. As a result, although the FECL reform strengthens enforcement tools, its practical impact on antitrust litigation will depend heavily on how these new judicial actors interpret and implement the law.
12. Appeals 12.1 Basis of Appeal
Challenges to decisions of the competition agency are brought through amparo proceedings before federal specialised judges and courts (review appeal). In contrast, appeals in damages cases are reviewed by appellate courts, which assess whether the lower court properly analysed the existence of harm, the causal link between the antitrust violation and the harm, and whether the amount awarded was correctly determined. The parties may then challenge this appellate deci - sion through amparo directo proceedings, allowing a higher court to review the constitutionality of the reso - lution. Under certain conditions, an amparo en revisión may be heard by the Supreme Court. The reform to the FECL brings about tougher enforce - ment tools, including significantly increased fines – up to 15% of income for cartels and 10% for abuse of dominance – lowered merger control thresholds, and a streamlined process for civil antitrust litigation. Notably, the reformed FECL now facilitates class and individual actions for damages, which can be initi - ated once an administrative resolution is final, even if appeals are pending, and extends the statute of limi - tations for such claims. The CNA is also empowered to certify compliance programmes, which may serve as mitigating factors in enforcement actions, and the law explicitly excludes public companies in strategic sectors from its scope of application. 13. Looking Forward 13.1 Legislative Trends and Other Developments
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