The Brazilian Administrative Council for Economic Defense (“CADE”) has recently declared that it intends to retain a specialized consultancy to develop the guidelines that CADE proposes to implement in connection with applying antitrust remedies in merger control, whenever required.
According to the published rules, this consultancy work should include an evaluation of CADE’s existing case law on antitrust remedies to build a more accurate perception on the efficacy of the remedies applied in the past and how they may or may not have served the purpose of addressing the anti-competitive effects identified in the transactions in which they were used.
With this measure CADE is not only becoming more aware of what has or has not worked, but it is also focusing on enhancing its existing mechanisms, as well as training its staff to know how to design behavioral or structural antitrust remedies more efficiently, also based on the experience of antitrust authorities from other jurisdictions.
Once the guidelines are issued, they will be submitted to the assessment of the general public in a public hearing, when contributions can be made.
This certainly stands as one more step in CADE’s inclination to seek improvements and to increase the level of predictability of its actions. It should be particularly helpful in allowing parties to a transaction to anticipate the negotiation of remedies in earlier stages of the transaction, which is highly relevant for deals that do not allow hell or high water clauses.