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Antitrust policy nominally plays an instrumental public interest
role. The generally accepted notion is that it is a government instrument
designed to intervene in relatively unregulated markets in order to preserve
rivalry among independent buyers and sellers. Competition authorities are
supposed to restrain business conduct that exercises monopoly power aimed at
excluding competitors or exploiting consumers and clients. Thus it can be said
– although few pro-market theorists make the insight explicit – that antitrust
provisions reveal mistrust of the capacity of markets to promote social
welfare. The inner logic, enforcement mechanisms, and practical outcomes of
antitrust provisions are all intrinsically contradictory to the natural
dynamic course of market functioning.
In Dr. De Leon’s challenging thesis, this mistrust of the market
lies at the root of antitrust policy, giving rise always to a preference
towards ‘predicting’ the result of impersonal market forces rather than
interpreting the entrepreneurial behaviour which creates those forces. And it
is in Latin America that he finds the powerful evidence he needs to support
his case. From the formative years of Latin American economic institutions,
during the Spanish Empire, economic regulations – far from being driven by the
pursuit of promoting free trade and economic freedom – have been conceived,
enacted and implemented in the context of deeply anti-market public policies,
trade mercantilism and government dirigisme. The so-called “neoliberal”
revolution of the 1990s triggered by the Washington Consensus did not really
change the interventionist innuendo of these policies, but merely restated the
social welfare goal to be achieved: the pursuit of economic efficiency. Dr.
De Leon presents his case against the assumption that consumer welfare
orientated policies such as antitrust do really promote entrepreneurship and
market goals. Paradoxically, antitrust enforcement has undermined the
transparency of market institutions, in the name of promoting market
The author’s provocative analysis marshals several sets of facts in support of
his thesis, including the actual functioning of antitrust policy as reflected
in case law in various Latin American countries, the preference of merger
control over other less intrusive forms of market surveillance, the
constrained role of competition advocacy against government acts, and the
ineffective institutional structure created to apply the policy. Among the
many specific topics treated are the following:
politically influential groups;
measurement of market concentration;
the burden of proof of social welfare benefits;
the role of joint trade associations and professional guilds;
institutional arrangements that favour collusion;
erosion of property rights;
marginal role of courts in the antitrust system;
leniency programs; and
privatized public utilities.
The growing significance of Latin America in the context of economic
globalization endows this book with huge international interest. Written by a
leading authority on the topic, this is the first book that presents a
detailed description of Latin American antitrust law and policy as it has been
developed through numerous judicial opinions. A wide variety of audiences
around the world will find it of extraordinary value: competition law
specialists, scholars and students of the subject, policymakers and
politicians in Latin America, as well as all interested lawyers, jurists, and
I. The Wellsprings of
Latin American Competition Policy. 1. The Cultural Background of
Anti-market Institutions in Latin America. 2. Neoclassical Market
Competition: A Look into the Anatomy of Economic Utopia.
American Antitrust Policy: Utopia in Practice. 3. Monopoly Power
Assessment. 4. Consumer Welfare Analysis. 5. Horizontal Mergers.
6. Horizontal Restraints. 7. Vertical Restraints. 8.
Unilateral Restraints. 9. Antitrust Policy in Regulated Industries.
III. Institutional Assessment of Latin American
Antitrust Policy. 10. Rule Stability versus Antitrust Enforcement. 11.
Latin American Competition Agencies: Renewed Government Interventionism.
12. Latin American Competition Advocacy: The Neglected Agenda. 13.
Latin American Antitrust Policy in a Country-to-Country Perspective. 14.
Conclusions: Overcoming the Antitrust Utopia. 15. Bibliography. Index
of Figures. Index of Tables. Index of Cases. List of Statutes.