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BOLIVIA

Diego Villarroel
Partner

dvillarroel@ferrere.com

Tel: +591 75018217

Jorge Palza
Senior Associate

jpalza@ferrere.com

Tel: +591 78767197

Confirmed up-to-date: 02/04/2024

(Content available free of charge at Mergerfilers.com - sponsored by Ferrere)

Relevant legislation and authorities

1) Is a merger control regulation in force?

Bolivia does not have a general merger control regulation.

In certain antitrust scenarios, merger control is required in the electricity, hydrocarbon, transport, telecommunications, banks and financial institutions, securities and insurance, and public services sectors.

2) Which authorities enforce the merger control regulation?

Merger control is enforced by separate supervision authorities (regulators) in the electricity, hydrocarbon, transport, telecommunications, banks and financial institutions, securities and insurance, and public services sectors.

Regarding private corporations that are not regulated, there is no specific merger control regulation in Bolivia.

3) Relevant regulations and guidelines with links:

Merger regulation for the electricity, hydrocarbon, transport, telecommunications, banks and financial institutions, securities and insurance, and public services sectors, is contained in Law 1600, dated October 28, 1994, and by Supreme Decree 0071, dated April 09, 2009, which modified the name and faculties of the supervision authorities of each sector.

Links to the relevant legislation, are listed here:

Original Spanish version

Unofficial English translation

Ley del Sistema de Regulación Sectorial

Law for the Sectorial Regulation System

(English translation not available)

Decreto Supremo 0071, el cual crea las Autoridades de Fiscalización y Control Social en los sectores de Transporte y Telecomunicaciones, Agua Potable y Saneamiento Básico, Electricidad, Bosques y Tierras, Pensiones, y Empresas, y determina su estructura organizativa, define sus competencias y atribuciones.

Supreme Decree 0071, which creates the Supervision Authorities for the following sectors: Transport and Telecommunications, Drinking Water and Basic Sanitation, Electricity, Land and Forests, Pensions, and Companies, and determines their structure, and defines their faculties.

(English translation not available)

4) Does general competition regulation apply to mergers or ancillary restrictions?

Yes.

For the regulated sectors, the Law for the Sectorial Regulation System includes general competition regulation provisions regarding the prohibition of mergers of competing regulated companies and entities when such mergers have the effect of establishing, promoting and consolidating a dominant position in a specific market.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

There are no other authorities than those listed in topic 2 above, which require merger filings in Bolivia.

Foreign investment control

Since 2014, based on the provisions of Law 516, for the promotion of investments in Bolivia, foreign investment must be registered before the Bolivian Central Bank. Foreign investments are defined as: investments of foreign origin, of a private or public nature, carried out by individuals or companies who are foreigners or Bolivian residing abroad for no less than two (2) years.

This registration must be made in specific formats, filed within 15 working days after the end of each trimester, which guarantee the obtainment of information referring to the origin, destination, contributions and investment mechanisms made by foreign investments, as well as possible reinvestments.

7) Are any parts of the territory exempted or covered by particular regulation?

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing (registration) is required for regulated companies. 

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

The transactions subject to merger control vary between each of the regulated sectors. However, in practice, merger control is generally only relevant for transactions that result in a change in the effective control of a company.

Only regulated sectors, industries and activities are covered by the merger control policies. Regulated sectors that contain certain merger control policies are:

  • oil, gas;
  • electricity generation, transmission and distribution;
  • telecommunications providers in Bolivia;
  • banks and other financial institutions; and
  • insurance and reinsurance companies.

10) Is "change of control" of a business required?

Yes, generally a merger will be considered to take place if the transaction results in a change of control over a business.

11) How is “control” defined?

There is no legal definition of “control” in Bolivian Regulation. Generally, “control” of an undertaking may be obtained through agreements or in other ways that will, either separately or in combination, make it possible to exert decisive influence on the operations of the undertaking.

A “change” of control depends on the industry and sector.

12) Acquisition of a minority interest

A merger filing obligation is only triggered if there is a change of control. 

13) Joint ventures/joint control – which transactions constitute mergers?

Joint ventures are, in general, not subject to merger filing requirements.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

There are no general thresholds to determine whether a merger is subject to regulatory scrutiny in Bolivia. Mergers between businesses in a regulated sector are subject to merger control regardless of their turnover, size or market share.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

N/A

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

N/A

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger filing, within the regulated sectors, is required if there is a final change of control.

20) Special industries, owners or types of transactions

Merger filing, within the regulated sectors, is required if there is a final change of control.

21) Transactions involving only foreign businesses (foreign-to-foreign)

In general, there are no filing requirements for foreign-to-foreign mergers.

22) No overlap of activities of the parties

N/A

23) Other exemptions from notification duty even if thresholds ARE met?

N/A

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Given the lack of thresholds for mergers in Bolivia, merger filing is mandatory within the regulated sectors.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No.

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

Filing requirements and fees

30) Stage of transaction when notification must be filed

Where merger control clearance is required, it must be obtained before implementation of the transaction.

31) Pre-notification consultations

There is no regulation in Bolivia which requires or prohibits pre-notification consultations. 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Companies registered before the Bolivian Stock Exchange are controlled by the Supervision Authority of Financial Entities, and as such, any merger of regulated companies must obtain a prior approval by this Supervision Authority before any public takeover bid and acquisition on stock exchanges if such operations result in a merger.

33) Forms available for completing a notification

N/A

34) Languages that may be applied in notifications and communication

Spanish.

35) Documents that must be supplied with notification

The documents required for notification vary from sector to sector. However, generally, the following documents should always be supplied with a merger notification:

  1. incorporation documents;
  2. powers of attorney;
  3. certificate of good standing;
  4. tax identification number

For full notification, it is possible that a range of further documents may be relevant, including minutes of board meetings and similar documents related to the merger.

36) Filing fees

There are no specific filing fees provided by law in Bolivia. 

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes. When required by law for regulated sectors, the merging businesses must be run separately and independently until the merger has been approved.

38) May the parties get permission to implement before approval?

No.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that safeguard against commercially sensitive information being used for purposes other than assessing the merger.

There are no guidelines on what may be considered acceptable preparatory steps.

40) Veto rights before closing and "Ordinary course of business" clauses

There are no provisions in Bolivian regulation about mergers which prohibits or allows “ordinary course of business” clauses.

In practice, an "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” in Bolivian regulation about mergers.

42) Consequences of implementing without approval/permission

The parties may be fined if the merger is implemented before approval is obtained.

Failure to adequately file or obtain regulatory authorization will generally result in the filing of a regulatory procedure for the revocation of the license or concession under which the regulated activity is carried out.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations in Bolivia.

No set duration or deadline

Approval process:

There are no specific formal rules on the assessment of merger notifications in Bolivia. Generally, when the merger notification has been formally submitted, the authority will assess whether the notification is complete. If the notification is deemed incomplete, the authority will grant a deadline and state which information is missing.

There are no deadlines for the approval process.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

Within the electricity sector, a merger or acquisition that grants an electricity generation company a market share of more than 36% of the installed capacity of the National Interconnected System would be prohibited.

Other regulated sectors do not have clearly defined thresholds. The Law for the Sectorial Regulation System prohibits any merger whose purpose is to establish, promote and/or strengthen a dominant position in a specific market. 

A dominant position is defined as:

  1. when a supplier or buyer of a particular type of goods or services is the only one in the relevant market or,
  2. if it is not the only one, it is not exposed to substantial competition.

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

N/A

47) Decisions and remedies/commitments available

There is no specific regulation on the conditions that may be applied to a decision on approval of a merger in Bolivia. It depends on each specific sector and is generally decided on a case-by-case basis. 

Publicity and access to the file

48) How and when will details about the merger be published?

The decisions from the relevant regulators, are not made public.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file.

Third parties:

Third parties do not have access to the file.

Judicial review

50) Who can appeal and what may be appealed?

The decisions regarding merger control issued by the supervision authorities within the regulated sectors may be appealed by using the administrative procedure. This means that, against a decision rejecting a merger within any of the regulated sectors, the affected party should be able to file a revocatory appeal. Against this appeal, the process allows a hierarchical appeal, and finally a ¨contentious¨ process before the Supreme Court.


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