PERU Trends and Developments Contributed by: Carlos A. Patrón, David Kuroiwa and Vania Cruz, Payet, Rey, Cauvi, Pérez Abogados
General Statistics on Merger Control in Peru (June 2021–May 2025) Since the entry into force of Law 31112 – Merger Control Law (June 2021), the National Institute for the Defence of Competition and Protection of Intellectual Property (INDECOPI) has had quite active years in the implementation and devel - opment of the merger control regime. This has provided some interesting data, as described below. • From June 2021 (when Law 31112 came into force) to May 2025 (as per the public informa - tion available), the Commission has received a total of 72 requests for transaction authori - sation. • Of the total number of applications received (72), the authority has approved four transac - tions with remedies and denied one transac - tion. INDECOPI tends to approve the vast majority of authorisation requests without conditions. • The remedies occurred in the telecommunica - tions, energy, pharmaceutical and construc - tion markets. The denied operation occurred in the sugar production market. • None of the resolutions issued by INDECOPI on merger control have been questioned through administrative or judicial appeals. • Two types of remedies have been approved by INDECOPI: behavioural and structural. (a) When INDECOPI has detected competi - tion problems in vertical relationships (occurring between companies operating at different levels of the production chain), it has approved behavioural remedies such as: (i) the reduction of the terms of the ex - clusivity agreements; and (ii) the obligation to hold tenders when
(b) When INDECOPI has detected competi - tion problems in horizontal relationships (occurring between companies compet - ing in the same market), it has approved structural or quasi-structural remedies such as the sale or licensing of trade marks of the companies involved. • The authority has always complied with the legal deadlines for Phase I and Phase II, pronouncing on several occasions in shorter deadlines than those established by the law (three to five days less). It is worth mentioning that the authority is obliged to comply with the legal deadlines established by current regulations; otherwise, positive administrative silence is applied (ie, if the authority does not resolve within the legal deadlines, the trans - action is understood to have been approved). • Regarding the criteria applied in the analy - sis of transactions, during the four years of implementation of Law 31112, INDECOPI has remained technical and aligned with interna - tional standards. A large part of INDECOPI’s analysis is to review the following elements: market structure (based on indices such as the Herfindahl-Hirschman Index – HHI and market share), barriers to entry (difficulty in entering the market) and competitive pressure (the existence of important competitors). • In line with the international trend, INDECOPI has accepted the non-compete or non-solic - itation agreements in transactions. However, it has established certain parameters for such agreements to be considered valid in a transaction: (a) the agreement must not have a duration of more than three years. Up to five years is allowed in justified situations; (b) the agreement must only cover the eco - nomic agents involved in the transaction; (c) the agreement must be limited to the eco - nomic activity carried out by the target;
the company wants to source an input necessary for its production.
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