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Law and Business Review of the Americas

Abstract

Unlike many other emerging and developing countries where competition laws have only recently been enacted, Brazil has had a long history of the application of competition laws and policies, culminating in its most recent legislative reforms in 2011. Brazilian competition agencies are also internationally commended as a success story, particularly for their strong stance against, and criminalization of, cartel activity. But there are also emerging difficulties. In recent years, the Brazilian constitutional courts have become important sites of social change as they adjudicate in areas such as health, telecommunications, and financial markets. There have been comparatively fewer applications for judicial review in competition law, however, and those who have litigated have been subject to increased costs and lengthy court delays. Rather, Brazilian competition law is increasingly characterized by a shift to the extra-judicial resolution of disputes. This decline in judicial review has had important consequences on the supervisory design and effectiveness of regulatory institutions and the identification of substantive conduct, potentially opening the way to inconsistent and discretionary regulatory interventions.

Many of the recent reforms to Brazilian competition law and regulatory institutions can be linked to similar approaches in other jurisdictions and follow closely the ideal of the "regulatory state" and recommendations made in "peer reviews" of Brazilian competition law by international antitrust experts and agencies such as the ICN and OECD. The first part of this article will examine the transfer and impact of these harmonized regimes and "soft laws" in emerging and developing countries. The second part will trace these issues in a particular policy area: the shift in Brazilian competition law from judicial review to the increasing "settlement" of competition disputes, particularly for cartels. It will evaluate how the local institutional context acts to constrain and modify (with implications for its effectiveness) an imported, harmonized regime.

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