The Same and the Other : A Comparative Study of Abuses of Dominance in Chile and South Africa

Following a comparative perspective, we assess the abuse of dominance provisions in competition law in Chile and South Africa. Unlike the institutional structure, that is similar in both countries, the legal provisions proscribing anti-competitive arrangements and conduct differ substantially. We argue this is a crucial difference that has impacted in the way each regime has evolved. The most obvious difference is the number of cases decided in each country – 11 cases in South Africa and 57 cases in Chile, up to September 2012. The second major difference relates to the basis on which the cases have been decided. The Chile decisions have tended to be framed in quite general terms as harm to competition and raising barriers to entry, to an extent reflecting the broader provisions in the law. By comparison, the South African tribunal has been more concerned with framing different specific types of abuses, reflecting the detailing of such conduct in the law itself. The agencies in each country have, however, pursued cases in similar industries and markets and, as might be expected given the high levels of concentration, generally against firms which are quite clearly dominant (at least in terms of their market shares). The review raises several pointers for the way forward and draws useful insights for young competition authorities