No, ESG measures/sustainability agreements have not been included in Argentina's jurisdictional competition regime. 

Yes, there might be new regulations coming into place in the foreseeable future. In this sense, Argentina’s National Antitrust Commission (“Antitrust Commission”) published a new draft regulation of Antitrust Law No. 27.442 (“Antitrust Law”), subject to public consultation. The draft is expected to replace the “Guide for the Notification of Economic Concentration Operations”, approved by Resolution No. 40/2001 of the Secretary of Trade (“SCI”).

In that regard, under the F-2 Form Section when referring to “Benefits of the Transaction of the General Economic Interest”, Subsection 10.b, the draft addresses the benefits that a transaction may have on various variables, such as employment generation, income, environmental care, and gender policies. In this sense, this section of the draft foreshadows the proposal of a broad interpretation regarding the general economic interest -legal asset protected under the Antitrust Law - which includes not only the uniform consensus on consumer welfare but more. As a result, the inclusion of concepts involving ESG is included in the Antitrust Commission’s initiative and intentions of further regulating this field within Argentina’s Antitrust Law.

No, however, we might see further regulation on the subject if the proposed draft aforementioned comes into force. In addition, the Antitrust Commission in Argentina has issued several precedents illustrating that the social impact of a given Transaction or conduct is key when performing an Antitrust assessment. These cases include:

• The “Rural Confederation of Associations” case within the wheat market.

Since the products involved within the wheat market were considered to be commodities, as such, the market was directly intervened by the State Economic Policies considering the essential means of consumption these represented for consumers and the country’s economy from a social standpoint. In this sense, the Antitrust Commission understood that the root of the anticompetitive conduct being investigated lay behind a State Policy, therefore, “the competition authority cannot pretend to investigate facts that have been generated in the private sector as a result of a clear and evident determination of the State”. The investigation was dismissed under this consideration.

• The “Diesel resolution” within the bulk diesel market.

The Antitrust Commission understood that “(…) the antitrust policy in Argentina must be consistent with the economic policy in force during the last years”. In addition, the Commission also pointed out that the consistency in the economic policy and its maintenance through time resulted in significant results regarding economic growth, and also, an increase in the employment rate. Therefore, the Antitrust Commission understood there was no abuse of the dominant position exerted through discriminatory prices demonstrating that the social impact of certain conducts does have a say in the competitive analysis.

• The “Bridas/Esso” case.

Stepping out of anticompetitive conduct, as regards mergers, in this case, the Antitrust Commission considered that a key issue for the approval of the transaction was the commitment carried out by the acquiring party regarding the increase of market output within a certain timeframe. This type of remedy solution to a case (namely, the commitment to “increase” production) is a highly unusual one in merger control cases since it would encourage the resulting entity to be bigger and would also be showing the interest of the Commission in matters beyond the mere competition-wise analysis into the grounds of industry policy. This clearly demonstrates that not only do antitrust enforcers in Argentina encourage social change but also do businesses that clearly benefit from the adoption of given policies.

• The “Cablevisión / Multicanal” case.

This case showed major post-transaction market shares and was also cleared based on several standpoints which may be considered to be “social”. While the most important reason for the clearance was the advent of a new technology that would competitively constrain the resulting entity, one of the commitments set out by the parties entailed the granting of free cable TV to certain institutions such as hospitals, schools, and elderly shelters.

• The “Mirgor / Brightstar” case.

Finally, it is worth mentioning the Mirgor/Brightstar case which took place recently. Both companies are dedicated to the manufacture and commercialization of cell phones in Argentina, Tierra del Fuego. The Transaction implied a merger between both companies given that Brightstar was leaving the country. As a result, Mirgor acquired Brightstar’s local assets guaranteeing the continuity of its production facilities and preventing a significant loss in labor. In other words, as Mirgor’s CEO José Luis Alonso stated: “[the transaction’s mobile] was more social than economic”. The Antitrust Commission later issued a Statement of Objection where it concluded that the merger of both firms would grant Mirgor a dominant position in a highly concentrated market being detrimental to the general economic interest. As a result, the transaction was subject to certain conditions among which the maintenance and relocation of workers were key. As a result, once again, the Antitrust Commission demonstrated that the social impact of transactions, no matter its effects on competition, is to be prioritized and considered. As a result, even though there is no formal guidance in force, these cases show that there is an established trend toward studying the social impact when confronting transactions’ notifications and anticompetitive conducts investigations.

No, Argentina has not issued guidance regarding competitor collaborations or participating in industry working groups that specifically address ESG. Nonetheless, the matter has been the subject of discussion in the “2022 Lex Mundi Latin American Enforcement Webinar” where the current Antitrust Commission’s President Rodrigo Luchinsky, referred to the aforementioned draft and its Section 10 which involves the introduction of potential ESG measures in the near future. For more information, please see our response to "If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022?"

No, Parties cannot seek specific guidance from authorities on proposed ESG initiatives.

Argentina does not currently quantify or calculate ESG effects.

Even though the Antitrust Commission is not active on this topic, the authority has shown special interest in the social aspect of ESG from an antitrust standpoint. In this sense, as illustrated above in answers to "If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022?" and "Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct?", the Antitrust Commission has understood in various precedents that the social impact of a given Transaction or conduct is key when performing an antitrust assessment.

Yet, we might expect new trends to move towards environment and governance in the near future.

Please see our response to "Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct?". 

No.