Memorandum of Understanding between the Canadian Competition Bureau and the Peruvian National Institute for the Defence of Competition and the Protection of Intellectual Property on the Application of Competition Laws

1. The purpose of this Memorandum of Understanding (hereinafter referred to as the “MOU”) is to promote cooperation and coordination between the Participants in the application of the competition laws of their respective countries.
2. For the purpose of this MOU:
   • “competition laws” means:
   1. for the Commissioner of Competition, legislation and regulations as set out in Annex A, and
   2. for the INDECOPI, legislation and regulations as set out in Annex B, as well as any amendments thereto and such other laws or regulations as the Participants may jointly decide upon in writing to be “competition laws” for the purposes of this MOU;
   • “enforcement activity(ies)” means any investigation or proceeding conducted by a Participant in relation to the competition laws that it administers or enforces; and
   • “territory” means the territory in which a Participant has jurisdiction.
3. Each Participant will notify the other as soon as practicable of any amendment to the competition laws of its country.

Subject to paragraphs 11 to 13, each Participant will notify the other with respect to its enforcement activities that may affect the other’s interests in the application of the competition laws of the other Participant’s country, including those that:

1. are relevant to the enforcement activities of the other Participant;
2. involve any conduct or transaction carried out in whole or in part in the other Participant’s territory that may be subject to penalties or other remedies under the competition laws administered and enforced by the other Participant, except where such conduct or transaction is insubstantial;
3. involve penalties or other remedies that expressly require or prohibit conduct in the other Participant’s territory or are otherwise directed at conduct in that territory; and
4. involve the seeking of information located in the other Participant’s territory, whether by personal visit by officials of a Participant or otherwise, except with respect to telephone contacts with a person in the other Participant’s territory where that person is not the subject of investigation and the contact seeks only an oral response on a voluntary basis.

A Participant will ordinarily give notification to the other Participant as soon as it becomes evident that notifiable circumstances are present.

Once a particular matter has been notified, the Participants will not make subsequent notifications on that matter unless the notifying Participant becomes aware of new issues bearing on the interests of the other Participant in the application of the competition laws of its country, or unless the notified Participant requests otherwise.

The Participants will ensure that notifications include the nature of the business activities under investigation and the provisions of the competition laws concerned. These notifications should be sufficiently detailed to enable the notified Participant to make an initial evaluation of the effect of the business activities on its interests in the application of the competition laws of its country.

Where the Participants are pursuing enforcement activities with regards to the same or related matters, they will endeavour to coordinate their enforcement activities where it is appropriate and practicable.

The Participants accept that it is in their common interest to work together in technical cooperation initiatives related to competition law enforcement and policy. Subject to the Participants’ reasonably available resources, these initiatives may include such forms of technical cooperation as the Participants decide are appropriate for the purposes of this MOU such as research, capacity building, training courses, seminars or workshops, exchanges of staff and other similar cooperation on a bilateral basis or in collaboration with other competition authorities and international organizations.

Where one Participant informs the other that a specific enforcement activity by the second Participant may affect the informing Participant’s interests in the application of the competition laws of its country, the second Participant will endeavour to provide timely notice of significant developments relating to those interests and an opportunity to provide input regarding any proposed penalty or other remedy.

The Participants will discuss any question arising out of this MOU, including questions on its interpretation or application, and will address them in a timely and practicable manner as circumstances permit.

The Participants will meet periodically, as necessary, to:

1. exchange information on their enforcement efforts and priorities in relation to the competition laws of their respective countries;
2. exchange information on economic sectors of common interest;
3. discuss changes to competition laws that may be under consideration;
4. discuss competition advocacy initiatives;
5. discuss the content of, and arrangements for, technical cooperation initiatives that they have decided to establish; and
6. discuss other matters of mutual interest relating to the application of the competition laws of their respective countries or the application of this MOU.

Nothing in this MOU will require a Participant to take any action, or to refrain from acting, in a manner inconsistent with existing laws, or will require any change in the laws of Canada or Peru.

1. Despite any other provision in this MOU, a Participant will not communicate information to the other Participant if such communication is prohibited by the statutes or regulations of the Participant possessing the information or would be incompatible with the interests of that Participant in the application of the competition laws of its country.
2. The degree to which one Participant communicates information to the other under this MOU may be subject to, and dependent upon, the acceptability of the assurances given by the other Participant with respect to confidentiality and with respect to the purposes for which the information will be used.

Unless the Participants decide otherwise, each Participant will, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence. Each Participant will oppose, to the fullest extent possible, any request by a third party for communication of such confidential information, unless the Participant providing the confidential information consents in writing to its communication.

The Participants will notify each other of their respective designated contact points to facilitate communications under this MOU.

This MOU is not legally binding.

1. This MOU will come into effect on the date of its final signature by the Participants.
2. The Participants may amend this MOU upon their mutual written consent.
3. A Participant may terminate this MOU by giving a 60-day written notice to the other Participant.

Signed in duplicate, at Cartagena this 14 of May, 2019, in the English, French and Spanish languages, each version being equally valid.