On November 30, 2018, during the G20 summit in Buenos Aires, Argentina, the U.S. president Donald Trump, Canada’s Prime Minister Justin Trudeau and Mexico’s former President Enrique Peña Nieto signed the United States-Mexico-Canada Agreement (“USMCA”), which will replace the 24 years old North America Fee Trade Agreement, once it has been ratified by each of the member states. 

PROVISIONS ON COMPETITION POLICY

UMSAC is made by 34 Chapters, 4 Annexes and 10 side letters; the legal provisions that address economic competition can be found in Chapter 21 titled “Competition Policy”.  This legal update will exclusively cover the legal provisions contained therein. 

As per information of Mexican Ministry of Economy, the objective of including a chapter exclusively dealing with competition policy was to:

“Establish a stronger and better framework to secure that due process rules will be followed when applying competition laws and to strengthen the coordination and cooperation among the competition authorities in the North American region…”

Territorial and extraterritorial application of competition laws

According to the text of the USMCA each party shall apply its own competition laws to all commercial activities within its territory. 

Notwithstanding, and in our opinion one the most outstanding contribution to competition law in the Americas, was the inclusion of extraterritorial application of competition laws provisions, same that dictate that a Party to the agreement is entitled to apply its national competition laws to conducts carried out outside its territory whenever appropriate nexus to its jurisdiction exists, which will resolve some sensitive jurisdictional issues in the region.

Exceptions to the application of competition laws

Each Party may determine if certain economic activities or sectors will be exempted from the application of competition laws in its territory, provided that those exceptions are transparent, established in its law and based on the public interest or public policy grounds. 

Enforcement Policies

All Parties shall (i) give MFN treatment to persons of another Party; (ii) take into consideration the effects of its enforcement actions on other Parties’ competition authorities; and, (iii) limit the remedies relating to conducts and assets outside its territory when an appropriate nexus to harm or threatened harm to commerce exist.

Procedural Fairness

National competition authorities shall: (i) provide transparency regarding the applicable legal framework under which investigations and enforcement procedures will take place; (ii) conduct investigations either subject to definitive deadlines or within a reasonable time; (iii) afford the opportunity to be represented by legal counsel, including at all meetings and procedures before national competition authorities; (iv) recognize legal privilege; and, (v) in mergers, permit early consultations.

Additionally, each Party will have to afford the person under investigation reasonable opportunity to (i) obtain information regarding the national competition authority’s concerns; (ii) discuss with the authority key legal, factual and procedural issues; (iii) have access to information to prepare an adequate defense; (iv) be heard and present evidence; (v) cross-examine any witness; and, (vi) contest any allegation before an impartial judicial or administrative authority.

Finally, each party shall provide the person that has been sanctioned the opportunity to seek judicial review by a court or independent tribunal, including substantive or procedural errors. 

Fines

The criteria used by the competition authority of a Party to calculate a fine shall be transparent and shall be based on the revenue or profit obtained in its territory.

Cooperation

The USMCA sets the basis for an enhancement of cooperation among competition authorities, which includes the basis for information sharing and for coordinating consumer protection enforcement in transnational issues.

Regarding every legal provision under this chapter there is no recourse to dispute the agreement; however, there is a resource of consultation under this chapter.