MEXICO Trends and Developments Contributed by: Fernando Carreño, Sergio López, Carlos Cevallos and Dolores Jiménez, Von Wobeser y Sierra, SC
Vulnerability of the budgetary resources for effective enforcement Beyond the approval of a new legal framework, a critical ongoing discussion revolves around the budgetary resources that will be allocated to the new competition authority. While it is conceivable that cost-cutting measures could be implemented in certain administrative areas previously overseen by COFECE and IFT, there remains significant uncertainty regarding the financial resources that will be available to the core operational units responsible for conduct - ing investigations into violations of the competi - tion law, particularly complex cartel investiga - tions. This issue is considered central to determining whether the activity level of the new authority will be able to maintain pace with that of COFECE, increase its effectiveness, or, conversely, suffer a reduction in its capacity to pursue impactful enforcement actions against cartels and other anti-competitive practices. The looming threat of talent flight and loss of technical capacity A pressing concern in current debates centres on the fate of Mexico’s antitrust specialists – the highly skilled professionals who have developed specialised knowledge and gained invaluable practical experience within COFECE and IFT over the past decade. There is growing appre - hension that the new regulatory body may lack both the budgetary resources and institutional commitment to retain these veteran officials. Such brain drain would represent a dual failure: the irreversible loss of technical capabilities and the squandering of decades of public investment in human capital. The potential departure of experienced cartel investigators, antitrust econ - omists, and competition lawyers would critically
impair the new authority’s ability to investigate complex anti-competitive practices, weakening Mexico’s overall competition enforcement capa - bilities. Specific areas highlighting the lack of robust diagnostic underpinning: damage claims, criminal penalties, increased sanctions, information exchange, and leniency programmes The issues of damage claims and criminal penal - ties, alongside the proposed increases in sanc - tions and the significant changes to the treat - ment of information exchange and the leniency programme, serve as stark illustrations of the apparent lack of a serious diagnostic founda - tion for the current legislative initiatives. Dysfunctional Damage Claims Regime Mexico’s chronic failure to operationalise dam - age claims reflects deep systemic flaws that the current legislative proposal attempts to address, yet without the comprehensive diagnostic approach this multifaceted problem demands. While the initiative seeks to accelerate claims by allowing damages actions upon issuance of an administrative ruling (a controversial proposal since it does not require the existence of a final judicial confirmation), it nevertheless lacks a rig - orous examination of why past efforts failed to establish functional private enforcement mech - anisms. By not first identifying and address - ing all root causes, these modifications, aside from potential unconstitutionality concerns, risk repeating past shortcomings in a system that requires nothing less than a complete overhaul of its enforcement ecosystem. Absence of criminal cartel prosecutions Mexico’s persistent failure to secure criminal convictions for cartel conduct exposes systemic weaknesses in antitrust enforcement. The cur -
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