Everyone for themselves! Proposals on the application of the failing firm defense

Abstract

COVID-19 has undoubtedly generated a business crisis that will not be easy to resolve. In this context, the failing firm defense becomes especially relevant, having been expressly introduced for a few months in Peruvian legislation on the occasion of the pandemic through Legislative Decree 1510, in order for the competition agency to take this aspect into account in its merger control decisions. Although, subsequently through Law 31112, Law that establishes merger control, the failing firm defense is o mentioned, this law leaves open the possibility of its application.
In this article, the authors analyze the failing firm defense, in order to comprehend its importance in the context of the pandemic. Also, they propose guidelines and amendments to strengthen the regulation of Law 31112.