The Bad Law as an obstacle to antitrust enforcement in Argentina (and Latin America?)

This article examines the phenomenon of "Bad Law" ("Mal Derecho") within Argentina's legal tradition, where laws are crafted based on idealistic conceptions of what the legal framework ought to be but lack the practical mechanisms necessary for effective enforcement. This disconnect between a law's design and its implementation fosters a dysfunctional legal system and widespread non-compliance. Rather than addressing the structural flaws within these laws, legal scholars often invoke the “Protective Hypothesis of Bad Law,” attributing non-compliance to a moral failure of the populace instead of recognizing the inherent deficiencies in the legal framework. This issue is starkly illustrated by Law 27,442 on Antitrust. Although ostensibly designed to promote competition and prevent market distortions, the law suffers from critical design flaws that render enforcement—both public and private—ineffective. Public enforcement is undermined by a lack of political incentives to establish the necessary enforcement authority, a shortcoming embedded within the law itself. Meanwhile, private enforcement remains largely theoretical, as potential plaintiffs are discouraged by the prohibitive complexity and costs of litigation. As a result, Argentina's competition law fails to achieve its intended objectives, leaving the country’s antitrust system largely ineffective and illusory.