Antitrust Damages Litigation in Latin America: A Comparative Study (Discussion Draft)

12.04.2024

CeCo Chile

Michael E. Jacobs Investigador de CeCo. J.D., Georgetown University Law Center; M.A., University of Wisconsin-Madison; B.A., University of Chicago. Director de Litigios de Antitrust Internacionales, CFM Lawyers LLP.

Abstract: 

This study seeks to identify obstacles to private damages actions in Latin America, with a particular focus on Chile, Colombia, Ecuador and Perú. Beginning with an examination of private enforcement in the United States and Canada, it identifies several factors that have led to robust (and some would say excessive) activity in those jurisdictions. The focus then turns to recent efforts in the United Kingdom and countries in the European Union to promote private damages actions there. Finally, the study examines the Latin American countries mentioned previously in light of experience elsewhere. Chile will receive the most in-depth consideration, partly because of greater familiarity with the system, but also because of its more extensive experience with private enforcement than other countries in the region. Moreover, Chile’s experience arguably has more relevance for similarly situated jurisdictions.

«Private enforcement of the antitrust laws serves two different roles within a competition system. The first, of course, is compensation. The second is deterrence, and that is true even if one conceives of private actions are being purely compensatory in nature, with deterrence reserved to public enforcers. Which points to a larger issue, namely that private enforcement can have a systemic effect on a competition system, the goal of which is to promote competitive markets and protect consumers, workers and other market participants».