Superintendencia de Industria y Comercio

By: Mateo Varela Martínez

The proliferation of competition regimes and the inevitable interdependence of the contemporary world have raised the number and complexity of cross-border competition cases, making international cooperation crucial in enforcement scenarios. Competition authorities around the world often face situations where they need to cooperate or coordinate their enforcement actions to ensure effectiveness, avoid inconsistencies and duplications and allow businesses to comply cost-effectively with multiple competition regimes. In order to facilitate such cooperation and coordination, competition authorities have developed various formal and informal tool. [1]

Among these tools, we can find the implementation of best practices, guidelines and other soft-law initiatives that are usually generated in international cooperation forums, such as the OECD, or other direct approaches to inter-institutional cooperation, like signing Memorandums of Understanding (MoUs).

This last way has received a great deal of support from the Colombian competition authority, the Superintendence of Industry and Commerce (SIC). Just in the last 8 years, the SIC has signed 14 MoUs with authorities from Canada, United States, Mexico, Brazil, Spain, among others, in specific competition topics. These agreements have a flexible structure that allows the parties to act quickly in defining the provisions that are of special interest to them. Also, they are easier to enter into or amend than inter-governmental agreements because they don’t require the authorization of legislative bodies and/or involvement of governmental bodies, such as foreign ministries.

Most MoUs have a similar structure than those of inter-governmental agreements, albeit with less detailed and formal provisions. Several of them lack some explicit provisions (such as comity and coordination in the same or related investigations) or are flexible regarding the scope of the provisions (such as compliance, confidentiality and information exchange).

Regardless of the above, MoUs may have differences between each other depending on the signatory agencies, their objectives and their experiences. In the Colombian case, for example, some MoUs signed by the SIC have very detailed provisions regarding information exchange in competition enforcement scenarios, even though these provisions are not legally binding at the end.

The use of these tools has allowed the SIC to quickly resolve concerns about the actions of certain companies in other jurisdictions and has also been important for the regulation of business mergers.

It is difficult to estimate the time saved by this authority in resolving a concern of this nature through an inter-institutional cooperation instrument vs the time it would take to process a request via inter-governmental cooperation, but it can easily be concluded that the levels of inter-institutional cooperation have facilitated communication with international counterparts and have made easier some elements that were previously more difficulty (such as the exchange of information or technical assistance).

Moreover, It is possible to affirm that after the signing of an inter-institutional cooperation agreement (be it an MoU or another) the levels of trust and reciprocity increase among the signatory authorities, reaching levels of trust that sometimes do not need to mention the aforementioned agreement in order to willingly engage in cooperation procedures.

In this flexible and interconnected world, we need to further encourage the use of tools that deepen our cooperation ties, whether by non-formal or unconventional means.

[1]  OECD. (2016). Inventory of provisions in inter-agency co-operation agreements (MoUs). DAF/COMP/WP3(2016)1.