Agreement Between
The Government of the United States of America
And
The Government of the United Mexican States
Regarding the Application of Their Competition Laws
The Government of the United States of America and the Government of the United Mexican
States (hereinafter referred to as "Parties");
Having regard to their close economic relations and cooperation within the framework of
the North American Free Trade Agreement ("NAFTA");
Noting that the sound and effective enforcement of their competition laws is a matter
of importance to the efficient operation of markets within the free trade area and to the
economic welfare of the Parties' citizens;
Having regard to their commitment in Chapter 15 of NAFTA to the importance of
cooperation and coordination among their competition authorities to further effective
competition law enforcement in the free trade area;
Recognizing that coordination of enforcement activities under the Parties' competition
laws may, in appropriate cases, result in a more effective resolution of the Parties'
respective concerns than would be attained through independent action;
Further recognizing that technical cooperation between the Parties' competition
authorities will contribute to improving and strengthening their relationship;
Noting that from time to time differences may arise between the Parties concerning the
application of their competition laws to conduct or transactions that implicate the
important interests of both Parties;
Noting further their commitment to give careful consideration to each other's important
interests in the application of their competition laws; and
Having regard to the growing cooperation between the Parties in matters relating to
competition law, including the 1995 Recommendation of the Council of the OECD Concerning
Cooperation Between Member Countries on Anticompetitive Practices Affecting International
Trade, the 1998 Recommendation of the Council of the OECD Concerning Effective Action
Against Hard Core Cartels, and the Communiqué issued at the Panama Antitrust Summit
Meeting in October 1998;
- Have agreed as follows:
Article I
PURPOSE AND DEFINITIONS
- 1. The purposes of this Agreement are to promote cooperation, including both enforcement
and technical cooperation, and coordination between the competition authorities of the
Parties, to avoid conflicts arising from the application of the Parties' competition laws,
and to minimize the impact on their respective important interests of any differences that
may arise.
-
- 2. For the purposes of this Agreement, the following terms shall have the following
definitions:
-
- (a) "Anticompetitive activity(ies)" means any conduct or transaction that may
be subject to penalties or relief under the competition laws of a Party;
-
- (b) "Competition authority(ies)" means
-
- (i) for the United Mexican States, the Federal Competition Commission;
-
- (ii) for the United States of America, the United States Department of Justice and the
Federal Trade Commission;
-
- (c) "Competition law(s)" means
-
- (i) for the United Mexican States, the Federal Law of Economic Competition of December
24, 1992, except for Articles 14 and 15, and the Regulations of the Federal Law of
Economic Competition of March 4, 1998, except for article 8;
-
- (ii) for the United States of America, the Sherman Act (15 U.S.C. §§ 1-7), the Clayton
Act (15 U.S.C. §§ 12-27), the Wilson Tariff Act (15 U.S.C. §§ 8-11) and the Federal
Trade Commission Act (15 U.S.C. §§ 41-58), to the extent that it applies to unfair
methods of competition,
as well as any amendments thereto, and such other laws or regulations as the Parties
may from time to time agree in writing to be a "competition law" for the
purposes of this Agreement; and
- (d) "Enforcement activity(ies)" means any investigation or proceeding
conducted by a Party in relation to its competition laws.
-
- 3. Any reference in this Agreement to a specific provision in either Party's competition
law shall be interpreted as referring to that provision as amended from time to time and
to any successor provision thereof. Each Party shall promptly notify the other of any
amendments to its competition laws.
Article II
NOTIFICATION
- 1. Each Party shall, subject to Article X(1), notify the other Party in the manner
provided by this Article and Article XII with respect to its enforcement activities that
may affect important interests of the other Party.
-
- 2. Enforcement activities that may affect the important interests of the other Party and
therefore ordinarily require notification include those that:
-
- (a) are relevant to enforcement activities of the other Party;
-
- (b) involve anticompetitive activities, other than mergers or acquisitions, carried out
in whole or in substantial part in the territory of the other Party;
-
- (c) involve mergers or acquisitions in which
-
- - one or more of the parties to the transaction, or
-
- - a company controlling one or more of the parties to the transaction,
-
- is a company incorporated or organized under the laws of the other Party or of one of
its States;
-
- (d) involve conduct believed to have been required, encouraged or approved by the other
Party;
-
- (e) involve remedies that expressly require or prohibit conduct in the territory of the
other Party or are otherwise directed at conduct in the territory of the other Party; or
-
- (f) involve the seeking of information located in the territory of the other Party.
-
- 3. Notification pursuant to this Article shall ordinarily be given as soon as a Party's
competition authorities become aware that notifiable circumstances are present, and in any
event in sufficient time to permit the views of the other Party to be taken into account.
-
- 4. When the competition authorities of a Party request that a person provide
information, documents or other records located in the territory of the notified Party, or
request oral testimony in a proceeding or participation in a personal interview by a
person located in the territory of the notified Party, notification shall be given:
-
- (a) if compliance with a request for written information, documents or other records is
voluntary, at or before the time that the request is made;
-
- (b) if compliance with a request for written information, documents or other records is
compulsory, at least seven (7) days prior to the request, (or, when seven (7) days' notice
cannot be given, as promptly as circumstances permit); and
-
- (c) in the case of oral testimony or personal interviews, at or before the time
arrangements for the interview or testimony are made.
-
- 5. Notification that would otherwise be required by this Article is not required with
respect to telephone contacts with a person where:
-
- (a) that person is not the subject of an investigation,
-
- (b) the contact seeks only an oral response on a voluntary basis (although the
availability and possible voluntary provision of documents may be discussed), and
-
- (c) the other Party's important interests do not appear to be otherwise implicated,
unless the other Party requests such notification in relation to a particular matter.
-
- 6. Notification is not required for each subsequent request for information in relation
to the same matter unless the Party seeking information becomes aware of new issues
bearing on the important interests of the other Party, or the other Party requests
otherwise in relation to a particular matter.
-
- 7. The Parties acknowledge that officials of either Party may visit the territory of the
other Party in the course of conducting investigations pursuant to their respective
competition laws. Such visits shall be subject to notification pursuant to this Article
and the consent of the notified Party.
-
- 8. Notifications shall be sufficiently detailed to enable the notified Party to make an
initial evaluation of the effect of the enforcement activity on its own important
interests, and shall include the nature of the activities under investigation and the
legal provisions concerned. Where possible, notifications shall include the names and
locations of the persons involved. Notifications concerning a proposed conditioned
approval, consent order or decree shall either include or, as soon as practicable be
followed by, copies of the proposed conditioned approval, order or decree and any
competitive impact statement relating to the matter.
-
- 9. Each Party shall also notify the other whenever its competition authorities intervene
or otherwise publicly participate in a regulatory or judicial proceeding that is not an
enforcement activity if the issue addressed in the intervention or participation may
affect the other Party's important interests. Such notification shall be made at the time
of the intervention or participation or as soon thereafter as possible.
Article III
ENFORCEMENT COOPERATION
- 1. (a) The Parties acknowledge that it is in their common interest to cooperate in the
detection of anticompetitive activities and the enforcement of their competition laws to
the extent compatible with their respective laws and important interests, and within their
reasonably available resources.
-
- (b) The Parties further acknowledge that it is in their common interest to share
information which will facilitate the effective application of their competition laws and
promote better understanding of each other's enforcement policies and activities.
-
- 2. The Parties will consider adopting such further arrangements as may be feasible and
desirable to enhance cooperation in the enforcement of their competition laws.
-
- 3. Each Party's competition authorities will, to the extent compatible with that Party's
laws, enforcement policies and other important interests:
-
- (a) assist the other Party's competition authorities, upon request, in locating and
obtaining evidence and witnesses, and in obtaining voluntary compliance with requests for
information, in the requested Party's territory;
-
- (b) inform the other Party's competition authorities with respect to enforcement
activities involving conduct that may also have an adverse effect on competition within
the territory of the other Party;
-
- (c) provide to the other Party's competition authorities, upon request, such information
within its possession as the requesting Party's competition authorities may specify that
is relevant to the requesting Party's enforcement activities; and
-
- (d) provide the other Party's competition authorities with any significant information
that comes to their attention about anticompetitive activities that may be relevant to, or
may warrant, enforcement activity by the other Party's competition authorities.
-
- 4. Nothing in this Agreement shall prevent the Parties from seeking or providing
assistance to one another pursuant to other agreements, treaties, arrangements or
practices between them.
Article IV
COORDINATION WITH REGARD TO RELATED MATTERS
- 1. Where both Parties' competition authorities are pursuing enforcement activities with
regard to related matters, they will consider coordination of their enforcement
activities. In such matters, the Parties may invoke such mutual assistance arrangements as
may be in force from time to time.
-
- 2. In considering whether particular enforcement activities should be coordinated,
either in whole or in part, the Parties' competition authorities shall take into account
the following factors, among others:
-
- (a) the effect of such coordination on the ability of both Parties to achieve their
respective enforcement objectives;
-
- (b) the relative abilities of the Parties' competition authorities to obtain information
necessary to conduct the enforcement activities;
-
- (c) the extent to which either Party's competition authorities can secure effective
relief against the anticompetitive activities involved;
-
- (d) the possible reduction of cost to the Parties and to the persons subject to
enforcement activities; and
-
- (e) the potential advantages of coordinated remedies to the Parties and to the persons
subject to the enforcement activities.
-
- 3. In any coordination arrangement, each Party's competition authorities shall seek to
conduct their enforcement activities consistently with the enforcement objectives of the
other Party's competition authorities.
-
- 4. In the case of concurrent or coordinated enforcement activities, the competition
authorities of each Party shall consider, upon request by the competition authorities of
the other Party and where consistent with the requested Party's enforcement interests,
ascertaining whether persons that have provided confidential information in connection
with those enforcement activities will consent to the sharing of such information between
the Parties' competition authorities.
-
- 5. Either Party's competition authorities may at any time notify the other Party's
competition authorities that they intend to limit or terminate coordinated enforcement and
pursue their enforcement activities independently and subject to the other provisions of
this Agreement.
Article V
COOPERATION REGARDING ANTICOMPETITIVE ACTIVITIES IN THE
TERRITORY OF ONE PARTY THAT ADVERSELY AFFECT THE INTERESTS
OF THE OTHER PARTY
- 1. The Parties note that anticompetitive activities may occur within the territory of
one Party that, in addition to violating that Party's competition laws, adversely affect
important interests of the other Party. The Parties agree that it is in their common
interest to seek relief against anticompetitive activities of this nature.
-
- 2. If a Party believes that anticompetitive activities carried out in the territory of
the other Party adversely affect its important interests, the first Party may request that
the other Party's competition authorities initiate appropriate enforcement activities. The
request shall be as specific as possible about the nature of the anticompetitive
activities and their effects on the interests of the Party, and shall include an offer of
such further information and other cooperation as the requesting Party's competition
authorities are able to provide.
-
- 3. The requested Party's competition authorities shall carefully consider whether to
initiate enforcement activities, or to expand ongoing enforcement activities, with respect
to the anticompetitive activities identified in the request. The requested Party's
competition authorities shall promptly inform the requesting Party of its decision. If
enforcement activities are initiated, the requested Party's competition authorities shall
advise the requesting Party of their outcome and, to the extent possible, of significant
interim developments.
-
- 4. Nothing in this Article limits the discretion of the requested Party's competition
authorities under its competition laws and enforcement policies as to whether to undertake
enforcement activities with respect to the anticompetitive activities identified in a
request, or precludes the requesting Party's competition authorities from undertaking
enforcement activities with respect to such anticompetitive activities.
Article VI
AVOIDANCE OF CONFLICTS
- 1. Within the framework of its own laws and to the extent compatible with its important
interests, each Party shall, having regard to the purpose of this Agreement as set out in
Article I, give careful consideration to the other Party's important interests throughout
all phases of its enforcement activities, including decisions regarding the initiation of
an investigation or proceeding, the scope of an investigation or proceeding and the nature
of the remedies or penalties sought in each case.
-
- 2. When a Party informs the other that a specific enforcement activity may affect the
first Party's important interests, the second Party shall provide timely notice of
developments of significance to those interests.
-
- 3. While an important interest of a Party may exist in the absence of official
involvement by the Party with the activity in question, it is recognized that such
interest would normally be reflected in antecedent laws, decisions or statements of policy
by its competent authorities.
-
- 4. A Party's important interests may be affected at any stage of enforcement activity by
the other Party. The Parties recognize the desirability of minimizing any adverse effects
of their enforcement activities on each other's important interests, particularly in the
choice of remedies. Typically, the potential for adverse impact on one Party's important
interests arising from enforcement activity by the other Party is less at the
investigative stage and greater at the stage at which conduct is prohibited or penalized,
or at which other forms of remedial orders are imposed.
-
- 5. Where it appears that one Party's enforcement activities may adversely affect the
important interests of the other Party, each Party shall, in assessing what measures it
will take, consider all appropriate factors, which may include but are not limited to:
-
- (a) the relative significance to the anticompetitive activities involved of conduct
occurring within one Party's territory as compared to conduct occurring within that of the
other;
-
- (b) the relative significance and foreseeability of the effects of the anticompetitive
activities on one Party's important interests as compared to the effects on the other
Party's important interests;
-
- (c) the presence or absence of a purpose on the part of those engaged in the
anticompetitive activities to affect consumers, suppliers or competitors within the
enforcing Party's territory;
-
- (d) the degree of conflict or consistency between the first Party's enforcement
activities (including remedies) and the other Party's laws or other important interests;
-
- (e) whether private persons, either natural or legal, will be placed under conflicting
requirements by both Parties;
-
- (f) the existence or absence of reasonable expectations that would be furthered or
defeated by the enforcement activities;
-
- (g) the location of relevant assets;
-
- (h) the degree to which a remedy, in order to be effective, must be carried out within
the other Party's territory; and
-
- (i) the extent to which enforcement activities of the other Party with respect to the
same persons, including judgments or conditioned approvals resulting from such activities,
would be affected.
Article VII
TECHNICAL COOPERATION
The Parties agree that it is in their common interest for their competition authorities
to work together in technical cooperation activities related to competition law
enforcement and policy. These activities may include, within their competition agencies'
reasonably available resources and to the extent authorized by their respective laws:
exchanges of information pursuant to Article III of this Agreement; exchanges of
competition agency personnel for training purposes at each other's competition agencies;
participation of competition agency personnel as lecturers or consultants at training
courses on competition law and policy organized or sponsored by each other's competition
authorities; and such other forms of technical cooperation as the Parties' competition
authorities agree are appropriate for purposes of this Agreement.
Article VIII
CONSULTATIONS
- 1. Either Party may request consultations regarding any matter relating to this
Agreement. The request for consultations shall indicate the reasons for the request and
whether any procedural time limits or other constraints require that consultations be
expedited. Each Party shall consult promptly when so requested with the view to reaching a
conclusion that is consistent with the principles set forth in this Agreement.
-
- 2. Consultations under this Article shall take place at the appropriate level as
determined by each Party.
-
- 3. During consultations under this Article, each Party shall provide to the other as
much information as it is able in order to facilitate the broadest possible discussion
regarding the relevant aspects of the matter that is the subject of consultations. Each
Party shall carefully consider the representations of the other Party in light of the
principles set out in this Agreement and shall be prepared to explain the specific results
of its application of those principles to the matter that is the subject of consultations.
Article IX
PERIODIC MEETINGS
Officials of the Parties' competition authorities shall meet periodically to:
- (a) exchange information on their current enforcement efforts and priorities in relation
to their competition laws;
-
- (b) exchange information on economic sectors of common interest;
-
- (c) discuss policy changes that they are considering; and
-
- (d) discuss other matters of mutual interest relating to the application of their
competition laws and the operation of this Agreement.
Article X
CONFIDENTIALITY OF INFORMATION
- 1. Notwithstanding any other provision of this Agreement, neither Party is required to
communicate information to the other Party if such communication is prohibited by the laws
of the Party possessing the information or would be incompatible with that Party's
important interests.
-
- 2. Unless otherwise agreed by the Parties, each Party shall, to the fullest extent
possible consistent with that Party's laws, (i) maintain the confidentiality of any
information communicated to it in confidence by the other Party under this Agreement, and
(ii) oppose any application by a third party for disclosure of such confidential
information.
Article XI
EXISTING LAWS
Nothing in this Agreement shall require a Party to take any action, or to refrain from
acting, in a manner that is inconsistent with its existing laws, or require any change in
the laws of the Parties or of their respective States.
Article XII
COMMUNICATIONS UNDER THIS AGREEMENT
Communications under this Agreement may be carried out directly between the competition
authorities of the Parties. Requests under Articles V(2) and VIII(1) shall, however, be
confirmed in writing through customary diplomatic channels.
Article XIII
ENTRY INTO FORCE AND TERMINATION
- 1. This Agreement shall enter into force upon signature.
-
- 2. This Agreement shall remain in force until 60 days after the date on which either
Party notifies the other Party in writing that it wishes to terminate the Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective
Governments, have signed this Agreement.
DONE at Mexico City, in duplicate, this eleventh day of July, 2000, in the English and
Spanish languages, each text being equally authentic.
FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA: |
FOR THE GOVERNMENT OF THE
UNITED MEXICAN STATES: |
|