PERU Trends and Developments Contributed by: Carlos A. Patrón, David Kuroiwa and Vania Cruz, Payet, Rey, Cauvi, Pérez Abogados
KKR/Telefónica/Entel In 2023, Kohlberg Kravis Roberts (KKR), through its subsidiary Pangea LuxCo S.à.r.l.; Telefónica Hispanoamérica, S.A. (Telefónica) and Entel Perú S.A. (Entel) requested authorisation from INDECOPI to form a joint venture to operate the current fibre optic networks of Telefónica and Entel. INDECOPI applied remedies upon verifying that the transaction included contractual conditions between Pangeaco and Entel that could gener - ate barriers that prevent the entry or expansion of current or potential competitors in that mar - ket. For example, one of the conditions imposed was that the time of the wholesale non-compete clause be reduced from 15 to three years; the obligation of exclusive purchase from 15 to five years and the clauses of right of first offer, right to match and retail non-competition be elimi - nated. As publicly reported by the companies involved, the transaction was not finally closed, due to In 2023, the Swiss company Sika AG, through its subsidiary Sika Perú S.A.C (Sika), requested authorisation from INDECOPI to acquire the Peruvian companies of the Chema Group. This concentration raised concerns regarding restrictions on competition that could result in certain construction material markets. In 2024, INDECOPI issued a decision approving such operation subject to conditions (which were pre - viously offered by the acquirer). These conditions were related to the sale and licensing of some brands of the Chema Group to a third company that could compete effec - unrelated reasons. Sika/Chema Group
tively in the markets in which potential risks to competition derived from the concentration were identified Agroaurora/Agrícola Chira In 2023, Agroaurora S.A.C. (a company dedicat - ed to the production and sale of sugar) applied to INDECOPI for authorisation to acquire Agríco - la del Chira S.A. (a company that is also engaged in the production and sale of sugar). INDECOPI identified that there are significant risks in the sugarcane acquisition market due to the fact that the acquiring group would have more than 80% market share; and, in the domes - tic sugar marketing market in the wholesale channel at the national level, where the acquiring group could have more than 50% share. During Phase II of the procedure, Agroaurora submitted a proposal for remedies aimed at mitigating or eliminating the risks preliminarily identified by INDECOPI. However, these rem - edies were discarded by INDECOPI because they were not effective in re-establishing the competition that would be lost as a result of the operation. In the absence of adequate remedies, INDECOPI decided not to authorise the transaction. This is the first operation whose authorisation is denied by the authority. Constitutional Claim Against the Regulations of the Merger Control Law In September 2021, a group of Peruvian lawyers filed a constitutional lawsuit against the Regula - tion of the Merger Control Law (Supreme Decree No 039-2021-PCM), arguing that the power granted to INDECOPI to review mergers went beyond the provisions of Law 31112 (Merger Control Law), so it would violate the principle of
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