Antitrust litigation is in an initial stage of development in Peru. In 2018, the national competition authority (hereinafter referred to as the NCA or Indecopi) filed the first lawsuit aimed at compensating the harm caused to consumers by an anti-competitive practice (collusion in the drug market). 

This action by the NCA represents a change in the authority's behaviour, which previously had not promoted lawsuits aimed at compensating damages generated by anti-competitive conducts, despite having the powers to do so since 2015. 

Another important step is the recent publication by Indecopi of the "Guidelines on compensation for damages caused to consumers as a result of anti-competitive practices" in 2021 (hereinafter referred to as "the Guidelines"). In that document, the NCA has established the criteria for determining in which cases, after the imposition of a sanction, it will file a claim before the judiciary seeking a compensation for damages on behalf of the consumers affected by an anti-competitive practice in order to defend their collective or diffuse interests (a figure similar to class action).

Following the publication of the Guidelines, it is expected that in the upcoming years Indecopi will promote more judicial proceedings seeking compensation for damages caused to consumers, especially in relation to cartels that directly affect them. For example, agreements to fix the price of fuel or basic food basket products have recently been sanctioned.  

Additionally, Indecopi has filed a complaint against a group of construction companies for participating in an anti-competitive cartel to fix prices in public bids. If the sanction imposed by Indecopi is upheld, the Peruvian state would, through its attorneys, file a lawsuit in its own right in order to seek compensation for the harm caused by the anti-competitive conduct. 

Article 52 of the Single Ordered Text of the Law for the Repression of Anti-competitive Conduct (hereinafter referred to as the SOT of the LRAC) provides that any agent that has been affected by an anti-competitive practice may request the corresponding compensation before the judiciary. Likewise, this regulation grants Indecopi the power to request this redress on behalf of the consumers who have been affected. 

These lawsuits can only be filed after Indecopi has determined and sanctioned the anti-competitive conduct in the last administrative instance. In the event that Indecopi's decision is challenged in the judiciary, the final decision of the judicial authority is required before filing a claim for damages. 

Indecopi's decision to sanction an anti-competitive practice can be challenged before the judiciary where there are specialised courts that review the decision (specialised courts in administrative litigation to rule on business disputes). 

Lawsuits seeking compensation for the damage caused by anti-competitive conducts are brought before ordinary civil courts. 

In both cases, when the same controversy or related cases are brought before different courts, judges may join proceedings so that they can be analysed by a single court at the request of any of the parties. 

Indecopi's decisions regarding anti-competitive practices can be challenged before the judiciary, which can uphold, overrule or modify the decisions through the corresponding special judicial process. Indecopi's decisions, once approved by the administrative court or, if applicable, confirmed by the judiciary, cannot be challenged in the national courts. For this reason, in a civil proceeding seeking compensation for damages caused by an anti-competitive practice, the judiciary will take the conclusions and findings reached by Indecopi as accurate. Decisions taken by foreign competition authorities are not binding on the judiciary, which may evaluate or question their scope. 

As mentioned in section 2.1 Legal Basis for a Claim, Indecopi may initiate legal proceedings for damages on behalf of the affected consumers. 

As the agents who decide to bring a claim for damages before the judiciary are in a civil proceeding, they will have to prove the arguments they have put forward. 

Similarly, in the event that the defendant alleges that the overcharge generated by the cartel has been passed onto a third party ("pass-on" defence) and not to the claimant, the defendant will have to prove this situation. 

In this type of civil proceeding, the evidentiary standard is that of "preponderant probability" and the elimination of all reasonable doubt is not required. 

Article 52 of the SOT of the LRAC establishes that any agent that has been affected by an anti-competitive practice can file a claim for compensation, provided that it can prove the existence of a causal link between the damage and the anti-competitive practice. Therefore, it is possible for direct and indirect purchasers to seek damages. 

However, the Guidelines state that Indecopi will prioritise the corresponding claim for damages in defence of the final purchasers of a product as long as it is with the aim of protecting the direct purchasers (consumers). 

The judicial process seeking damages in favour of agents who have been affected by an anti-competitive practice follows the general rules of a civil process. These proceedings usually take more than four years to resolve per instance. 

For example, the first case of compensation for damages brought by Indecopi in 2018 has not yet received a first-instance ruling. 

If an antitrust violation has previously been determined by the NCA and the latter’s judgment has become res judicata (because it is not challenged or because if contested the judiciary upholds it), then both class and collective actions may be brought to before the judiciary to seek compensation for damages. 

Only class and collective actions that can be initiated by the NCA are subject to the Guidelines. As per these Guidelines, these actions are available on an opt-out basis. Once the lawsuit is admitted, the NCA is required to produce a press release that highlights the affected consumer’s right to be excluded from the class action and pursue compensation through individual lawsuits instead. Consumers who wish to exercise this right of exclusion must inform the NCA of their decision within 30 business days. Unlike the case of class or collective actions brought by the NCA, there is neither a regulation nor case law governing class and collective actions that can be initiated by other legal entities (such as consumer protection associations), so it is unclear whether an opt-in or opt-out basis will apply to them. 

Pursuant the above-mentioned Guidelines, the NCA may only file class or collective actions on behalf of direct purchasers, provided that these buyers are the intended end-users of the goods or services they have purchased. Hence, indirect purchasers, or even direct purchasers that do not use the goods or services for personal purposes but rather for commercial objectives, are not caught by class or collective actions that can be brought by the NCA. To the extent they can demonstrate the harm and the causal connection, however, indirect purchasers who have been negatively impacted by the anti-competitive behaviour may initiate their own individual lawsuits, according to the Guidelines.    

It is clear that the NCA is able to initiate class actions, since it is regulated not only by the Antitrust Law but also by the specific Guidelines. Furthermore, it can be interpreted that consumer protection associations are also entitled to initiate class actions on the matter, to the extent the Consumer Protection Act has set forth that these associations may file lawsuits before the judiciary to protect the diffuse interests of the consumers. The Code of Civil Procedure gives the judge the authority to accept actions initiated by non-profit associations, but it also obliges them to render a reasonable judgment on their participation. Although, to the best of our knowledge, there are no precedents on this matter, the broad definition of diffuse interest of the consumer should suffice to support consumer protection associations acting as a class representative.

With regard to the certification process applicable in class actions initiated by the NCA, the Guidelines provide that prior to filing a lawsuit, the NCA shall issue an opinion identifying the class of affected consumers, this being sufficient to provide a “reasonable estimation” on the matter. This means that it is not mandatory at this stage to identify the exact scope of the class (ie, number of potential plaintiff or the individual damages suffered by each one), but rather a reasonable scope. Once the lawsuit is admitted, the NCA may require that alleged impacted consumers within the class show invoices or similar evidence to support that they are part of the class. 

Provided that only class actions brought by the NCA are subject to specific rules (Guidelines) and in the absence of related case-law, there is no clarity about how to conduct the certification process in the case of class actions to be initiated by other legal entities (ie, consumer protection associations).  

Collective actions for damages can be settled prior to filing the lawsuit or while the latter is ongoing.  

Before the judicial process is initiated, the plaintiff and the defendant may reach a settlement through private negotiations that can be conducted exclusively between them or handled by a negotiation centre.  

Once the judicial process has begun, the parties may settle their damages dispute within the judicial system provided the second instance has not yet ruled (conciliación) or outside the process at any stage of the judicial process (transacción extrajudicial). In the first scenario (conciliación), the judge can summon the parties, oversee the negotiation and have the authority to propose an agreement. This proposal or a different one reached by the parties is formalised by the judge and the process is finalised. In the latter case (transacción extrajudicial), negotiation is fully conducted outside the process and, therefore, the judge's involvement is restricted to formally approving the parties’ settlement.  

It is worth mentioning that for collective actions sought by the NCA, the applicable Guidelines have stated that the payment agreed to in the settlement will only compensate the damages caused to the affected consumers. Contrary to a court’s final decision, a settlement cannot include any additional payments in favour of the NCA (except for those costs that must be incurred by the NCA to ensure that the compensation received is effective for consumers), or other third non-profit parties or charitable organisations of the NCA’s choosing.     

During the sanctioning proceedings, the NCA or the defendants can raise arguments to challenge that the claim has no real prospect of success. If these arguments are compelling, the NCA is able to dismiss the complaint. However, there is no regulation establishing that this type of judgment shall be rendered solely at an early stage and, therefore, interested parties may request or even the NCA may address this type of judgment at any point while the action is underway.  

Based on our experience, the most pertinent grounds for dismissing the case before the controversy has been fully evaluated and ruled out relate to the failure of the claimant to establish its standing or the fact that the issue falls outside the purview of the Antitrust Law. 

On the other hand, the defendants are able to make formal arguments (such as the statute of limitations, lack of standing, and lack of interest) in defence through their initial answer to a claim in a judicial procedure initiated to seek compensation. This kind of reasoning aims to reach a quick decision based on formal arguments without the need for the judiciary to thoroughly evaluate the claim from a substantial standpoint.

The NCA is the governmental body with the authority to bring sanctioning administrative proceedings against parties who are accused of abusing their dominant market position or engaging in anti-competitive horizontal or vertical arrangements in breach of the Antitrust Law. As a result, the NCA has powers to adjudicate cases, levy fines up to 12% of gross income on the infringer and issue orders. The NCA can also oversee conduct implemented abroad, so long such conduct produces effects or is able to partially or fully affect economic activities conducted in Peru.   

Furthermore, violations of the Antitrust Law can be deemed criminal offences under the form of abuse of economic power, based on recently passed legislation. The Attorney General is empowered to prosecute this criminal offence, provided that the conduct is carried out in Peruvian territory. 

Lastly, the civil judges and courts of the judiciary are the authorities with powers to issue judgments concerning actions for damages. These type of actions are governed by the Civil Code, the Code of Civil Procedure and the Guidelines (when applicable). 

According to the Antitrust Law, the applicable statute of limitations is five years and, thus, the NCA is time-barred to bring an infringement action against any undertakings if such term has expired.  

Pursuant the Antitrust Law, this term will begin to run from the final moment the conduct occurred, being interrupted by any act adopted by the NCA which relates to the investigation of the suspected breach. Due to a conflict with a provision of the Administrative Procedural Law that is applicable to all agencies and emphasises that the statute of limitations period can only be interrupted by a formal notice of an infringement initiating the sanctioning proceeding, the application of this provision in the Antitrust Law is currently being challenged before the judiciary. 

Concerning the limitation period applicable to civil actions for damages, the applicable term is two years from the date the NCA’s judgment on an antitrust infringement becomes res judicata (either because it is not challenged or because if contested the judiciary upholds it).

Any piece of evidence or relevant argument provided during the proceeding by the plaintiff and the defendant or gathered by the NCA is supposed to be disclosed to all the litigators to the extent this information has a bearing on the case. Upon receipt of this information and after a preliminary analysis, the NCA is obliged to disclose the evidence and/or arguments received to other parties and expect their due response, unless this information is withheld from disclosure on the basis of any applicable confidentiality regime (ie, trade secret). In this instance, parties other than the one who gave the information are merely given a concise summary of the information (without the confidential data). 

Furthermore, parties to the proceeding may ask the NCA to obtain from an opponent any evidence that is supposedly relevant to the issues under dispute, so that the document becomes available during the proceeding. The NCA has broad powers to decide whether this information should be provided or not, being a discretionary power of the NCA aimed at facilitating the investigation rather than a right of the parties. In addition, only a partial disclosure of information would be acceptable (ie, without including confidential data unless due process of law is affected) if the material is covered by any applicable confidentiality regime. 

Documents can be withheld from disclosure based on the attorney-client privilege, which is in turn recognised by the Administrative Procedural Law.  

This right is particularly important in dawn raids because, prior to granting access to the documentation, the overseen undertaking may request that certain information is not collected on the grounds of professional privilege or other reasons supporting that the documents are not related to the investigation (ie, family information). If professional privilege is alleged, the inspector will briefly evaluate the situation with the purpose of validating whether it is subject to the aforementioned privilege or not. It may happen that the information to be collected is extremely large and a brief revision is not possible. In such scenario, the review will be conducted subsequently and, if the information relates to the legal professional privilege, it would be returned. 

The application of the legal professional privilege in antitrust investigation has not been extensively developed. Based on the scant case law on the subject, legal professional privilege would not be exerted if advice rendered by the attorney has contributed to a breach of the Antitrust Law. Furthermore, there is no binding decision governing the application of the legal professional privilege to the professional relationship between the undertaking and its in-house or outside counsel.   

One of the pillars of the leniency programme is confidentiality. As per the Antitrust Law and the Guidelines released on the matter, the NCA shall keep confidential all the files related to the leniency, which include not only the leniency agreement, but also the leniency request (including the identity of the collaborator), other writs filed during the assessment and the leniency materials (ie, statements, records, emails, documents). This confidentiality would cease if the NCA is not able to obtain its own evidence and the identity of the collaborator shall be disclosed to the alleged infringer to protect the latter’s due process. 

Additionally, investigated parties may negotiate a cease commitment (compromise de cese)with the NCA to conclude a sanctioning proceeding. A set of measures intended to overcome or counteract the anti-competitive effects of the conduct shall be included in this cease commitment. It is also customary for undertakings to offer a financial remedy (in the form of trusts, funds) in support of the NCA. A cease commitment does not prevent the right of the affected parties to seek compensation for damages before the judiciary. Even though there is no confidentiality requirement for the settlement itself, no statement or document provided by the undertaking while negotiating the cease commitment can be used against it to support its administrative liability.  

In legal proceedings in which the existence and amount of damage caused by anti-competitive practices is disputed, the procedural principle that governs is that of freedom of evidence. In other words, the parties may resort to all types of lawful means of evidence that are suitable for proving the truth of their allegations. One of these means of evidence is testimonial evidence, which must be oral, before the judge and subject to cross-examination.  

If the witness gives false testimony and the falsehood is verified, they can be criminally punished with a prison sentence of up to four years. 

In legal proceedings in which compensation is sought for the damages that an anti-competitive practice (eg, a price cartel between competitors) has caused to the market and, in particular, to consumers, most of the debate revolves around determining the amount of the damage.  

Expert witnesses are often called upon to provide evidence to clarify this important issue for the judge. Both the plaintiff and the defendant can offer their expert witnesses. If the judge deems it necessary, an impartial expert opinion can be commissioned from an expert appointed by the judge. 

Under Peruvian law, the purpose of the compensation that can be ordered is to make up the damages that the anti-competitive practice has caused. According to the Peruvian Civil Code, there are two types of damages that can be compensated: (i) loss of profits, and (ii) consequential damages.  

In this regard, the consequential damage is the financial loss directly caused by the infringing conduct, while the loss of profit is the future profit that the infringing conduct did not allow to be generated. In Peru, punitive damages are not awarded. 

As there has been little jurisprudential development in Peru in reference to cases of compensation for damages caused by anti-competitive practices, there has been no opportunity to verify whether a defence of this type (the pass-on defence) would be acceptable by a judge to mitigate the compensable damage. 

However, it is perfectly possible for the defendant to argue this, as the calculation of the damage must be estimated as precisely as possible. In that sense, if the party affected by the anti-competitive practice – which now claims compensation – was able to transfer the damage downstream, that undoubtedly influences the determination of the calculation of the damage. In such a scenario, the defendant will have to prove that the plaintiff has passed on the effects of the anti-competitive practice downstream. 

If the judiciary determines that a certain amount must be paid in order to compensate the damage generated by an anti-competitive practice, this will include the legal interest accrued from the date on which the damage occurred. 

The rate to be applied is the effective legal interest rate set by the Central Reserve Bank of Peru. 

Civil liability for damages caused by anti-competitive conduct is joint and several among all the agents that committed the infringement. In this sense, following the example of a price cartel, all cartelised companies are jointly and severally liable for the damages that their anti-competitive conduct may have generated. 

Furthermore, the law does not establish a limitation of civil liability for those who apply to the leniency programme. However, the Guidelines state that, when the NCA brings class actions for the defence of diffuse or collective interests of affected consumers, the competition agency will not target those who have applied for the leniency programme and have full immunity. 

As the liability is joint and several, if one of the defendants fails to pay the full amount of compensation ordered, the defendant may request contributions from the other co-defendants. 

Precautionary measures can be issued before or during the proceedings by civil judges at the request of the party who has initiated the proceedings for damages. 

There is nothing to prevent a precautionary measure from being requested as long as the following must be demonstrated:

• the plausibility of the right invoked;
• the need for the issuance of a preventive decision due to the danger of delay in the proceedings or for any other justifiable reason; and
• the reasonableness of the measure to guarantee the effectiveness of the claim. 

The application for a precautionary measure is always notified and processed separately from the main proceedings for damages. In general, they are characterised by their speed in view of securing a right. 

In accordance with the civil proceedings, it is necessary to offer a "counter-guarantee" in order to ensure compensation for the execution of the precautionary measure in the event that the claim is not favourable. However, if it is the Executive Branch that has brought the damages proceedings, it is exempted from the obligation to provide a counter-guarantee. 

Alternative dispute resolution methods do not exist. Damages for anti-competitive conduct can only be enforced in accordance with Article 52 of the SOT of the LRCA. 

Even though there is no regulation on this topic, litigation funding is not prevented and, therefore, if one part seeks funds to support its litigation, it is able to be financed by any third party, such relationship being of a civil nature and governed by the regular regime applicable to any contract. Despite the foregoing, there is no record of this type of funding in actions related to antitrust brought before the judiciary.   

When the proceedings end unfavourably for one party, that party is obliged to pay the costs incurred by the counterparty in the proceedings. There is no process for securing the payment of costs incurred in court proceedings. However, there may be special cases in which the judge's pronouncement is required, such as when a discontinuance is declared. 

The costs are substantiated according to certain criteria, such as the expenses incurred in the payment of court fees and/or defence costs. 

Damages judgments can be appealed. The appeal is lodged with the same court that issued the decision on damages. Appeals are decided by a higher court. 

Appeals can be raised on issues of law and fact that have been identified in the contested judgment. The person requesting the appeal must substantiate either of these two aspects.