private com pet ion review chile

8/3/2019 Private Com Pet Ion Review Chile

1/22

The PrivaTe ComPeTiTion review

third edition

The Private

Competition

Enforcement

Review

L Busss Rs

d Ed

Ed

Il Kbl Gs


2/22

The PrivaTe ComPeTiTion review

third edition

rpc pmss fm L Bsss rsc L.

Tis ati was st pis it Pv Cmp efcm rv,

(pis i Spt 2010 it I Ka Gtts).

F f fm pls ml

Aa.Sagt@sa.


3/22

Contents

2

Th Prat

Comptton

Enforcmnt

Review

third edition

e

ilene Knable GoTTs

lawbusiness researCh lTd


4/22

Contents

PublISherGi rt

buSIneSS develoPmenT mAnAGerAa Sagt

mArKeTInG mAnAGerSh ts

nck B

edITorIAl ASSISTAnTn nk

ProducTIon mAnAGerAa ms

ProduCtion editor

Ja m

editor-in-ChieFca cap

mAnAGInG dIrecTorria da

Pis i t uit Kig law bsiss rsa lt, l

87 laast ra, l, W11 1QQ, uK

2010 law bsiss rsa lt cpigt i iiia apts sts wit t tits

n ptpig: pigt is t app.T iati pi i tis piati is ga a a t app i a spi

sitati. lga ai s awas sgt takig a ga ati as t iati pi. T piss apt spsiiit a ats

issis tai i. Atg t iati pi is aat as Spt 2010, ais tat tis is a pig aa.

eqiis ig pti s st t law bsiss rsa, at tass a. eqiis ig itia tt s it

t t Pis gi.t@sa.

ISbn 978-1-907606-04-5

Pit i Gat bitai epass Pit Stis, dsi

T: +44 870 897 3239


5/22

AcKnoWledGemenTS

T pis akwgs a taks t wig aw s ti aassista tgt t ppaati tis k:Fmms

Fm ms

ArnTzen de beSche AdvoKATfIrmA AS

CLiFFord ChanCe

edWArd nAThAn SonnenberGS InC

ePSTeIn, chomSKy, oSnAT & co

ferrAdAnehme

lAnnA PeIxoTo AdvoGAdoS

lInKlATerS llP

mAlleSonS STePhen JAQueS

morAIS leITo, GAlvo TeleS, SoAreS dA SIlvA & ASSocIAdoS,SocIedAde de AdvoGAdoS, rL

moTIeKA & AudzevIcIuS

nIShImurA & ASAhi

noerr LLP

norTon roSe llP

PAul, WeISS, rIfKInd, WhArTon & GArrISon llP

PoPovIcI nIt, u & ASocIAt, ii

TAylor WeSSInG

turun

urA menndez

WAchTell lIPTon roSen & KATz

yulchon, ATTorneyS AT lAw


6/22

Contents

Editors Preface v

Ilene Knable Gotts

Chapter 1 AuSTrAlIA 1Trish Henry, Domenic Gatto and Peta Stevenson

Chapter 2 BraziL 18Bruno L Peixoto

Chapter 3 ChiLe 1Paulo Montt and Benjamn Mordoj

Chapter 4 enGlAnd & WAleS 41Peter Scott and Mark Simpson

Chapter 5 euroPean union 66Bernd Meyring

Chapter 6 FranCe 84Mlanie Thill-Tayara and Marta Giner Asins

Chapter 7 GermAny 94

Michael Dietrich and Marco Hartmann-Rppel

Chapter 8 hunGAry 114Alexander Birnstiel and Peter Stauber

Chapter 9 ISrAel 125Eytan Epstein, Tamar Dolev-Green and Shiran Shabtai

Chapter 10 ITAly 142Cristoforo Osti and Alessandra Prastaro

Chapter 11 JaPan 157Kozo Kawai and Madoka Shimada

Chapter 12 KoreA 169Sai Ree Yun, Kum Ju Son, Alexa Oh and Seung Hyuck Han

Chapter 13 Lithuania 178Henrikas Celencevicius

conTenTS


7/22

Contents

Chapter 14 norWAy 190Thomas Nordby and Steinar Eskild Trovg

Chapter 15 PorTuGAl 202Joaquim Vieira Peres and Eduardo Maia Cadete

Chapter 16 romAnIA 212Silviu Stoica and Mihaela Ion

Chapter 17 SouTh AfrIcA 221Jocelyn Katz and Lara Zetzer

Chapter 18 SPAIn 23Alfonso Gutirrez

Chapter 19 TurKey 246Esin amlbel

Chapter 20 unITed STATeS 259Ilene Knable Gotts, Joseph Simons and Aidan Synnott

Appendix 1 AbouT The AuThorS 281

Appendix 2 conTrIbuTInG lAW fIrmS conTAcT deTAIlS296


8/22

v

editors preface

pv nu lgn h bn ky mnn h nu gm

in the United States and reects the societal views generally towards the objectives

n l lgn. th Un s lgn ym hghly vl ung

xnv vy, lng n mn, u x, n, n mll numb

m, l, lv h gh h . a ul, h mhigh litigation costs (in time and money) on all participants and promises great rewards

for prevailing plaintiffs. The usual rule that each party bears its own attorneys fees is

mn v nu uh h vlng ln nl

as well as treble damages. The costs and potential rewards to plaintiffs has created an

environment in which a large percentage of cases settle on the eve of trial. Arbitration

n mn ll , bu n unh , n nu u. cng n

h Us sum cu hv m ul m h m vlu lgn

and class actions by adopting tougher standards and ensuring that follow-on litigation

exposure does not discourage wrongdoers from seeking amnesty from the competitionuh. alhugh h nv my, n h mgn, h vlum v

nu lgn n h Un s, h nvnmn mn hgh lgn

activity in the near-term, particularly involving intellectual property rights and cartels.

Most of the other jurisdictions discussed in this book have each sought to initiate

or increase the role of private antitrust litigation recently (in the past few years, for

nn, n Bzl n il) mlmn n ubl nu nmn.

In April 2008, the European Commission published a White Paper suggesting a new

private damages model for achieving compensation for consumers and businesses who

vm nu vln, nng h n, h u bl

n m eU Mmb s h ug num n bun m lmng

mnn n u n v nu mg n []. th ml b n

mnn hugh ngl mg h hm u. th ky mmnn

nlu llv , n h m nv n by num gu n

victims who choose to participate, as opposed to class actions of unidentied claimants;

disclosure of relevant evidence in the possession of parties; and nal infringement


9/22

Editors preface

v

decisions of Member States competition authorities constituting sufcient proof of

an infringement in subsequent actions for damages. Commissioner Kroes was unable to

hv n h lgln n v nmn b h n h m.

Commissioner Almunia plans to enter into a new round of consultations and is likely

to combine the initiative with forthcoming legislation on consumer protection. Bothproposals will likely contain some form of collective redress.

Even in the absence of the issuance of nal EU guidelines, however, states

throughout the European Union (and indeed in most of the world) have increased

h v nu nmn gh nng hng lgln

provide further rights to those injured by antitrust law infringement. Indeed, private

nmn vlmn n mny h hv uln h eU nv.

The English and German courts are emerging as major venues for private enforcement

actions. Collective actions are now recognised in Sweden, Finland and Denmark. Italy

also recently approved legislation allowing for collective damages actions and providing

nng u nv num n num n, n fn n

England are currently also contemplating collective action legislation. Some jurisdictions

have not to date had any private damages awards in antitrust cases, but changes to their

mn lgln ul vubly h bngng v nu lgn

kng mg (.g., Lhun rmn).

Almost all jurisdictions have adopted an extraterritorial approach premised

on effects within their borders. Canadian courts may also decline jurisdiction for a

foreign defendant based on the doctrine of forum non conveniens as well as comityconsiderations.. In contrast, some jurisdictions, such as the UK, are prepared to allow

claims in their jurisdictions where there is relatively limited connection, such as where

only one of a large number of defendants is located. In South Africa, the courts will

also consider spill-over effects from antitrust cartel conduct as providing a sufcient

jurisdictional basis. Jurisdictions also vary regarding how difcult they make it for a

plaintiff to have standing to bring the case. Most jurisdictions impose a limitation period

for bringing actions that commences only when the plaintiff knows of the wrongdoing

and its actors; a few, however, apply shorter, more rigid time frames without a tolling

period for the commencement of damages (e.g., Brazil or Canada with respect toCompetition Act claims) or injunctive litigation. Some jurisdictions base the statute of

limitations upon when a nal determination of the competition authorities is rendered

(e.g., Romania or South Africa) or from when the agency investigation commences (e.g.,

Hungary). In other jurisdictions (e.g., Australia or Chile), it is not as clear when the

statutory period will be tolled.

The litigation system in each jurisdiction to some extent reects the perceptions of

what private rights should protect. Most of the jurisdictions view private antitrust rights

as an extension of tort law (e.g., Canada, France, Hungary, Israel, Japan, Korea, Norway,the Netherlands or the UK), with liability arising for actors who negligently or knowingly

engage in conduct that injures another party. Some jurisdictions treat antitrust concerns as

a defence for breaching a contract (e.g., Norway or the Netherlands), others (e.g., Australia)

value the deterrent aspect of private actions to augment public enforcement, while others

are concerned that private antitrust litigation might thwart public enforcement and may

require what is in essence consent of the regulators before allowing the litigation or permit

the enforcement ofcials to participate in the case (e.g., in Germany the President of


10/22

Editors preface

x

the Federal Cartel Ofce may act as amicus curiae). A few jurisdictions believe that private

lgn hul nly b vlbl vm nu h h nu uh

have already penalised (e.g., Spain, until legislation loosened this requirement somewhat).

Interestingly, no other jurisdiction has chosen to replicate the United States system of

treble damages for competition claims, taking the position that damages awards shouldbe compensatory rather than punitive (Canada does, however, recognise the potential for

punitive damages for common law conspiracy and tort claims), neither does any other

jurisdiction permit the broad-ranging and court-sanctioned scope of discovery permitted

n h Un s. only aul m b m v hn h Un s

suits being led by a broad range of plaintiffs including class-action representatives and

n uh n n lgn nmn n ml

ubm h nu uh n l nvgn. fnlly, n lm ll

jurisdictions, the prevailing party has some or all of its costs compensated by the losing

y, ugng vlu lgn.

Varying cultural views also clearly affect litigation models. Jurisdictions such as

Gmny K gnlly n m nv l n, bu n

have as a founding principle the use of courts for pursuing individual claims. In Japan,

l n n vlbl x gnn m n num

members. Jurisdictions that are receptive to arbitration and mediation as an alternative

to litigation (e.g., Germany, Hungary, Korea, the Netherlands or Spain), also encourage

lnv u mhnm n v nu m. sm u h

use of experts and statements to discovery (e.g., in France, where the appointment ofindependent experts is common; in Japan, which does not have mandatory production

or discovery except in narrowly prescribed circumstances; and in Germany, which even

allows the use of statements in lieu of documents). In Korea, economic experts are

mainly used for assessment of damages rather than to establish violations. In Norway,

the Civil Procedure Act allows for the appointment of expert judges and advisory

opinions of the EFTA court. Other jurisdictions believe that discovery is necessary to

reach the correct outcome (e.g., Canada, which provides for broad discovery, and Israel,

which believes laying your cards on the table and broad discovery are important). Views

towards protecting certain documents and information on privilege grounds also cutconsistently across antitrust and non-antitrust grounds (e.g., no attorneyclient, attorney

work-product or joint work-product privileges in Japan, limited recognition of privilege

in Germany; extensive legal advice, litigation and common interest privilege in the UK,

and Norway), with the exception that some jurisdictions have left open the possibility of

the privilege being preserved for otherwise privileged materials submitted to the antitrust

authorities in cartel investigations. Interestingly, Portugal, which expressly recognises

legal privilege for both external and in-house counsel, nonetheless provides for broad

access to documents to the Portuguese Competition Authority. Some jurisdictions viewsettlement as a private matter (e.g., France, Japan or the Netherlands); others view it as

subject to judicial intervention (e.g., Israel or Switzerland). The culture in some places,

such as Germany, so strongly favours settlement that judges will require parties to

attend hearings, and even propose settlement terms. In Canada, the law has imposed

consequences for failure to accept a reasonable offer to settle and, in some jurisdictions,

a pre-trial settlement conference is mandatory.


11/22

Editors preface

x

Private antitrust litigation is largely a work in progress in most parts of the

world, with the paint still drying even in the United States several decades after private

enforcement began. Many of the issues raised in this book, such as pass-on defence and

h nng n uh, unlv by h u n mny un n

our authors have provided their views regarding how these issues are likely to be claried.Also unresolved in some jurisdictions is the availability of information obtained by the

mn uh ung l nvgn, bh m lnny n n

a party convicted of the offence. Other issues such as privilege are subject to proposed

legislative changes. The one constant cutting across all jurisdictions is the upwards

trend in cartel enforcement activity, which is likely to be a continuous source for private

lgn n h uu.

Ilene Knable Gotts

Whll Ln rn & Kz

New York

smb 2010


12/22

31

Chapter 3

chile

Paulo Montt and Benjamn Mordoj*

I OVERVIEW OF RECENT PRIVATE ANTITRUST

LITIGATION ACTIVITY

Ts yar saw a andmark as rgardng prvat anttrust tgaton for damags nurrd

as a result of a violation of the antitrust rules. The case concerns a civil lawsuit led in

2009 by t can subsdary of Pp Morrs aganst ctabaos, a subsdary of

Brts Amran Tobao, dmandng approxmaty $136 mon n damags arsng

from ant-ompttv rbats and rfusa to da. T comptton court (TDlc)

and, on appa t Suprm court, ad arr stabsd ts prats as abusv and

ontrary to t anttrust rus.1 in ts judgmnt of January 2010, t v ourt dnd

t am basd on t ak of vdn rgardng t damags amd by Pp Morrs.

Although the trial is still pending before a court of appeal, this case marks a denite

change in Chilean private competition enforcement, as it is one the rst cases where a

signicant claim has been led for damages as a result of anti-competitive behaviour. This case may also inuence the civil claim recently announced against Ca

cna d Fsforos (ccF), t prdomnant manufaturr of mats for domst

us.2 ccF was rud aganst by t TDlc n Dmbr 2009 for xusonary onduts

su as ant-ompttv rbats and t mposton of xusvty auss on rtars.

T TDlc dson was upd n Jun 2010 by t Suprm court and on of t

pantffs, canada cmas, subsqunty annound a v am for $13 mon.

Anotr rvant dson was OPS et al v. Telefnica Mviles, n w t TDlc

ned Telefnica Mviles de Chile (Telefnica) for price discrimination, margin squeeze

and rfusa to da.3 OPS provdd a srv known as t unk systm, w onvrts

* Paulo Montt is a partner and Benjamn Mordoj is an associate at FerradaNehme.

1 Philip Morris v. Chiletabacos, Case No. 11-04, TDLC, Decision No. 26, 5 August 2005.

2 http://df.cl/portal2/content/df/ediciones/20100605/cont_142787.html.

3 OPS et al v. Telefnica Mviles. Case No. 126-07, TDLC, Decision No. 88, 15 October 2009.


13/22

Chile

32

mob off-nt pon as nto on-nt as. Ts mans tat mob pon as

orgnatng from a mob ntwork dffrnt to t dstnaton ntwork ar prossd as

on nt pon as, tus avodng t paymnt of args for ass to t otr mob

ntwork. in ordr to provd ts srv, OPS ad agrmnts n pa wt Tfna

and otr mob pon ompans. Tfna rasd t prs t argd OPS fortr mob pon pans and OPS ompand tat t nw prs wr dsrmnatory,

sn t pad gr prs tan otr usrs wo dmandd a owr voum of mnuts.

T dson aganst Tfna was upd n Juy 2010 by t Suprm court and,

therefore, OPS is expected to le a civil lawsuit seeking compensation for damages

aganst Tfna.

II GENERAL INTRODUCTION TO THE LEGISLATIVE

FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT

If a rm is affected by anti-competitive conduct, it can le a lawsuit before the

TDLC in order to establish antitrust liability. The rm can also le an administrative

complaint before the National Economic Prosecutors Ofce (FNE), the competent

antitrust agency. The FNE has no power to punish anti-competitive conduct, but it can

initiate proceedings before the TDLC. If the FNE decides to initiate proceedings, the

complainant and other affected rms can either join the trial as interested parties, or

le their own complaints before the TDLC. There are many precedents where private

parties have indeed joined the FNEs actions.4The TDLC can determine an antitrust violation and impose a ne on the rm

voatng t aw, but aks t omptn to grant damags to t pantff. Damag

ams ar govrnd by t gnra rus of v aw, and ony v ourts ar mpowrd

to quantfy damags. Damag ams soud trfor b brougt bfor t v ourts

on t TDlc as stabsd an anttrust voaton as ourrd. Aordng to can

aw, t v ourt s trby obgd to bas ts subsqunt judgmnt on t dson of

t TDlc; t annot stabs tsf wtr t anttrust aw was voatd and annot

dvat from t TDlcs opnon of t agd nfrngmnt.

cv ourts do, owvr, av broad powrs to dtrmn t v of damags for

the plaintiff. Damages may be both economic as well as non-economic, the quantication

of w s govrnd by t gnra rus and prnps of v aw. if no damags an

b provn bfor t v ourt by t pantff, t am soud b dsmssd.

Aordng to t ast amndmnts of can anttrust aw,5 t statut of

mtatons for anttrust ams bfor t TDlc s tr yars aftr t ant-ompttv

ondut taks pa. T aw s not aways ar on wat soud b onsdrd t start

of ts prod, and t ourts av statd on oason tat, n ass of ongong ondut,

t trm starts as of t trmnaton of su ondut. For ouson ass, t statutof limitations is ve years, the period of which does not start as long as the collusive

4 See FNE v. Almacenes Paris y Falabella, Case No. 103-06, TDLC, Decision No. 63, 10 April

2008.

5 DL 211/1973.


14/22

Chile

33

bavour st as ffts n t markt. T statut of mtatons for subsqunt

damags ams bfor t v ourts s four yars aftr t TDlcs rung or, n t

as of appa, tat of t Suprm court.

III EXTRATERRITORIALITY

T trrtora sop of can anttrust aw xtnds to rstrtv prats tat ar

mpmntd n c. Any prson wo undrtaks or ntrs nto ndvduay or

otvy any aton or agrmnt avng as ts objt or fft t prvnton,

rstrton or dstorton of omptton n t can markt, may ommt an anttrust

offn. T rvant fator for t appaton of can anttrust aw s trfor

t atua fft n t can markt, takng prdn ovr t pa wr t

transaton atuay ours. T jursdton of t TDlc s, owvr, mtd to ttrrtory of c. in ordr to nfor admnstratv masurs aganst forgn ompans

nfrngng can anttrust aw, t s nssary tat ts ompans av a subsdary, a

bran or otr assts n c.

The TDLC is currently dealing with a complaint led by the FNE against

John Malone, an American citizen, because Mr Malone allegedly breached one of the

ondtons st out by t TDlc wn arng a mrgr btwn t two major ab

TV operators in 2004, and he has recently led his plea before the TDLC. However, he

ontnus to dny t jursdton of t TDlc bfor t US ourts.6

In turn, the FNE has recently led an antitrust complaint against two foreignrms, Whirlpool and Tecumseh do Brazil, based on the effects in Chile of an alleged

global cartel in the market for refrigeration compressors. The FNE argues that this

goba art affts oa manufaturrs tat us omprssors as t man omponnt

in the manufacture of freezers and other refrigeration equipment, meaning that Chilean

onsumrs av to pay gr prs.7

T TDlc as aso rvwd ntrnatona mrgrs avng ffts n c.

Rnty, t natona man fu rtar, cop, annound t puras of 22 pr nt

of Trp, a coomban ptro and natura gas dstrbutor. Sn Trp aso owns ptro

stations in Chile, Copec has notied the TDLC and committed to quickly sell these

statons as a rmdy.8

The TDLC and the FNE are therefore empowered to deal with conduct or

mrgrs ommttd or ondutd abroad as ong as ty av ffts n c; tr s

no exemption, in principle, provided for conduct by foreign rms or committed in other

jursdtons. howvr, t xtnt to w judgmnts pronound by can ourts ar

6 Information available at www.tdlc.cl/DocumentosMultiples/Requerimiento_FNE_C_156_

08.pdf.

7 Information available at www.tdlc.cl/DocumentosMultiples/Requerimiento%20de%20la%20

FNE%20contra%20Tecumseh%20Do%20Brasil%20Ltda.%20y%20otro.pdf.

8 Information available at www.tdlc.cl/DocumentosMultiples/Consulta%20de%20Copec%20S.

A.%20sobre%20los%20efectos%20en%20Chile%20de%20su%20participacin%20en%20la

%20propiedad%20de%20Terpel%20Colombia%20y%20medidas%20de%20mitigacin.pdf.


15/22

Chile

34

rognsd and nford n forgn jursdtons w dpnd on tr own natona rus

as w t appab ntrnatona trats.

IV STANDING

The FNE, as the public agency representing the general interest of society in antitrust

matters, can always initiate a case before the TDLC; the FNE does not need to show any

drt or spa ntrst.

Prvat parts an aso brng a as bfor t TDlc. Aordng to t gnra

produra rus, ty must sow a gtmat ntrst n ordr to av standng. Rnty,

t TDlc rud tat a pantff must prov a drt ntrst n santonng t dfndant

n ordr to b onsdrd as a gtmat ntrstd party. Ts dson aptd t

defendants argument that a non-prot organisation lacks the standing to bring a casebfor t TDlc.9 T TDlc dson was appad by t pantff on t bass of an

agd pub ntrst nvovd n any anttrust aton. T Suprm court s xptd

to pronoun ts judgmnt soon, tr upodng t TDlcs rtron or makng a

dffrnt ntrprtaton tat aows wdr standng n anttrust mattrs.

If there is an antitrust complaint led by the FNE or a private party with sufcient

gtmat ntrst, trd parts an aways jon t pantff s am f ty an sow an

interest in the case. The TDLC has shown a rather exible approach towards such third

parties, and it seems no specic or personal interest needs to be demonstrated.10

Atoug t s tnay not an ssu of standng, tr ar rtan rqurmntsas to t form and ontnt of any ompants brougt bfor t TDlc. T pantff

soud sow a rtan good fat towards t as n t sns tat t ompants soud

be supported facts and evidence, sufcient to prove the case. The exact position of the

TDlc and t Suprm court as to ts ssu, w s ratd to t dsusson as to

wtr and to wat xtnt t anttrust ourts, n srvng t pub ntrst, ar obgd

to at ex ofcio n ordr to obtan vdn, rmans, owvr, unar.11

According to the last amendments to DL 211/1973, the TDLC may declare a

as nadmssb f t pantffs do not ompy wt t forma rqurmnts st fort

by can aw.

V THE PROCESS OF DISCOVERY

can aw dos not provd for a dsovry systm and t submsson of doumnts

s govrnd by t gnra rus of vdn ontand n t cv Produr cod. in

prnp, a supportng doumnts nd to b prsntd bfor t TDlc and, wr

9 Fundacin Chile Ciudadano y RGB Producciones v. VTR BA Chile SA , Case No. 168-08, TDLC,

Decision No. 98, 18 March 2010.

10 FNE v. Farmacias Ahumada SA, Farmacias Cruz Verde SA y Salcobrand SA , Case No. 184-08,

TDlc (pndng).

11 Hasbun v. Copec, Esso y Shell, Case No. 157-08, TDLC, Decision No. 87, 13 August 2009.


16/22

Chile

35

rtan doumnts ar n t posssson of t otr party, t TDlc may ordr t

produton of su doumnts.

In a recent case, the defendants requested that the FNE disclose certain documents

in its possession before they presented their reply to the FNEs injunction. However, the

TDlc rjtd t rqust, a dson tat was upd on appa by t consttutonacourt;12 the court held that the FNE would not be acting unconstitutionally by presenting

t doumnts onrnd aftr t dfndants rpy. Atoug t as onrnd an

njunton ssud by t pub anttrust agny, tr s no ndaton tat t rtra

woud not aso appy n prvat ass bfor t TDlc.

Following a similar criterion, the TDLC recently denied a discovery request led by

an o wosar rgardng rtan doumnts n posssson of t stat-ownd natona

oil company ENAP.13 Atoug t can cv Produr cod aows a potnta

pantff to ask for a dsosur of rtan doumnts, t TDlc ntrprtd tat ts

systm s not appab to anttrust tras.14 Ts dson s ontrovrsa, onsdrng

tat t aformntond cv Produr cod s appab to anttrust mattrs tat do

not have a specic rule, as precisely was the case on discovery.

There are certain safeguards as to the condentiality of documents to be disclosed.

Documents can be presented as entirely condential, whereby its content will not be

rvad to any of t otr parts nvovd, xpt undr rsrvaton, w mans

tat t otr parts nvovd w av ass to t doumnt but t doumnt w

not b mad pub.

in prnp, no rstrtons or mtatons xst as to wtnsss, and any prsonmay appar. ea party may prsnt a maxmum of tr wtnsss n raton to t

dsputd fats n raton to w t TDlc as ordrd vdn to b prsntd. T

TDlc as t rgt to ntrrogat t wtnsss prsntd and any parts to t as

av t rgt to ountr ntrrogat su wtnsss as w.

in v ass, t stuaton s somwat dffrnt as t submsson of doumnts

as w as rqusts for produton of doumnts by t otr party an b mad at

any stag bfor t vdn prod xprs. in addton, a party may prsnt a

maxmum of sx wtnsss n raton to a dsputd fat. Fnay, t produra rus

ar strtr rgardng t ndpndn of t wtnsss, and xud rtan groupssu as ratvs or mpoys of a party to t as.

VI USE OF EXPERTS

it s ratr ommon prat to prsnt onom rports or ga opnons n t ass

bfor t TDlc. in gnra, t rports or opnons ar usd to support t poston

of on party from a ga or onom pont of vw, and t autors of su opnons

ar normay prsntd as wtnsss as w. exprts prsntng onom rports ar

12 Information available at: www.tdlc.cl/DocumentosMultiples/Tribunal%20Constitucional_Ina

dmisibilidad%20de%20Recurso%20de%20Inaplicabilidad%20.pdf.

13 Please note that ENAP is governed by private law rules, as if it were a private rm.

14 Blue Oil v. ENAP, Case No. 201-10, TDLC.


17/22

Chile

36

obgd to submt, n dgta form, any formua and auatons tat support tr

opnon, n ordr to aow t TDlcs onomsts to rvw tm.

T TDlc may aso appont an xprt ex ofcio. Atoug rary usd n t past,

ts prat s now bng mor ommon, gvn t mpartaty tat an ex ofcio xprt

offrs to t pross. Su xprts ar gnray usd by t ourt to assst on tnassus ratr tan onom or ga tory.

in prnp, tr ar no rstrtons on t us of xprts to support any

damags ams n v prodngs. As prvousy xpand, damags ams av bn

rar to dat, so tr s no stabsd prat n ts rspt. in t andmark as Philip

Morris v. Chiletabacos15 t pantff submttd a numbr of xprt rports on t agd

damags; owvr, tos rports wr not noug, n t v ourts opnon, to prov

t damags amd by Pp Morrs.

VII CLASS ACTIONS

T anttrust aw dos not provd for otv ams or ass aton suts n raton to

anttrust voatons bfor t TDlc. Subsqunt damags ams bfor t v ourts

may aso b mad on an ndvdua bass baus n t can systm, otv ams

ar ony possb n raton to voatons of t onsumr protton aw.

in Otobr 2009, a v ourt dnd ts jursdton to da wt a ass aton sut

aganst t man tr parmay ans n c, foowng a sttmnt rad by on

of the defendants with the FNE in an antitrust case before the TDLC regarding allegedprice xing. The claim was based on violations of consumer protection rights, but the

fats and ondut n ts as wr smar to tos dsputd bfor t TDlc. Tr s

anotr ass aton sut, st pndng bfor a v ourt, basd on t sam fats, and

t dfndant as amd tat onsumr protton aws ar not appab to ondut

tat onsttuts anttrust voaton. T quston as to wtr ant-ompttv bavour

may onsttut a voaton of anttrust aw as w as t onsumr protton aws rmans

open for now. The answer to this question is highly relevant as it may open the oodgates

to otv damags ams for rtan typs of ant-ompttv bavour.

VIII CALCULATING DAMAGES

cams of damags arsng from anttrust voatons av bn rar, possby baus

su ams must b ntatd n a sparat tra, on t TDlc as arady stabsd

t xstn of an anttrust voaton.

Aordng to t gnra rus of v aw, an afftd party an am any damags

effectively suffered, including pure economic loss and loss of prots; the burden of

proof rests thereby on the plaintiff. Non-economic damages, dened as moral damages,ar aptab n prnp, but t can v ourts tak a ratr rsrvd poston

to su ams. in a rnt as rgardng osss rsutng from prdatory prng, t

Supreme Court awarded damages for operational loss and loss of prots, but denied the

15 S footnot 1.


18/22

Chile

37

am for mora damags. in Philip Morris v. Chiletabacos(st pndng) t $136 mon

amd nuds mora damags.

The Chilean courts have not accepted punitive damages, as damage indemnication

n c s ompnsatory ratr tan puntv; owvr, n prat, t can ourts

do bas tr dsons on puntv onsdratons wn awardng mora damags. it sexpected that the nal decision on Philip Morrisw ky bom an mportant prdnt

n ts mattr.

lawyrs fs ar govrnd by gnra produra rus. if a party s woy

dfatd n tra, t as to pay t otrs ga attornys fs unss t ourt dms t

dfatd party ad good rason to tgat. in raty, a party gnray ovrs ts own

awyr and ga fs.

IX PASS-ON DEFENCES

T pantff as t rgt to am ony tos damags fftvy suffrd. can

gsaton dos not xprssy rogns t pass-on dfn and tr ar to dat no

prdnts about ts ssu n c. howvr, sn t pantff an ony am t

damags fftvy suffrd, t annot am for damags ausd to subsqunt buyrs.

Sn a pantff as t burdn of provng t xstn and v of damags, a pass-on

dfn may n prnp sud wn a pantff annot provd onvnng vdn

about t damags t s skng to rovr.

X FOLLOW-UP LITIGATION

A rmna awsut dos not prud t appaton of anttrust aw and v vrsa.

Trfor, prvat omptton nformnt n prnp s not afftd by rmna

nformnt. Pub anttrust nformnt, on t otr and, dos afft prvat

nformnt, as a dson rndrd by t TDlc as a drt fft on and n fat

provds t bass for futur prvat ams.

DL 211/1973 provides immunity for those parties who engage into any agreementor ondut n aordan wt a dson by t TDlc rndrng su ondut awfu.

Tos parts annot b brougt bfor t TDlc for anttrust voatons and ar

prottd from v ams unss t TDlc ovrrus an arr dson on t grounds

of nw vdn. Ts mmunty s vry mportant n t ontxt of non-tgous

proceedings, since private parties can le voluntary consultations prior to completing

transaton or ngagng n atons tat may voat omptton rus. howvr, ts

mmunty s aso appab to t tgous produr, sn subsqunt dsons annot

ontradt prvous rungs on t sam mattr.

Sn nny as rnty bn ntrodud n dang wt mattrs of ouson,tr s no prdnt about ow nny may afft prvat nformnt, spay f

tr ar damags arsng from t atons of a art. Aordng to t ast amndmnts

to DL211/1973, in the recently led complaint against Whirlpool and Tecumseh do

Brazil, the FNE has declared that the party that had collaborated in the investigation

would be granted full immunity from nes, but it is not yet clear if it could subsequently be

sud for damags bfor t v ourts. howvr, n n wt ntrnatona xprn,


19/22

Chile

38

it may be expected that leniency provides immunity only in relation to possible nes but

dos not prud prvat nformnt.

This situation is less clear in relation to settlements reached with the FNE or

any private party in cases before the TDLC. Settlements substitute for the nal court

judgmnts and, onsqunty, no anttrust voaton w b stabsd. it sms unkytat t sttng party oud b sud for damags foowng su sttmnt.

It has also been discussed to what extent sector-specic regulation may be a shield

aganst anttrust ams. in OPS et al v. Telefnica Mviles, on of Tfnas dfns was

based on the alleged violation of sector-specic regulation by the plaintiff. The TDLC

rqustd t xprt opnon of t Srtary of Tommunatons, t natona

rguatory agny, w ddd tat OPSs atvty was ga sn t sougt to avod t

paymnt of args for t ass to Tfnas mob ntwork. T TDlc, owvr,

dd not apt su opnon and vntuay onudd tat Tfna ad abusd ts

dominant position and had carried out a margin squeeze. We can conclude, therefore,

that, in principle, sector-specic regulation does not provide antitrust immunity.

XI PRIVILEGE

Until recently, antitrust law did not provide a specic protection of lawyerclient work

or ommunatons. Ts aspts wr ovrd by otr aws and tr as bn no

ontrovrsy rgardng profssona work n t past.

However, as a result of the latest amendments to DL 211/1973, the FNE is nowmpowrd to prform dawn rads as w as ntrpt tron ommunatons. T

nw amndmnts stpuat tat ntrpton of any ommunatons btwn a nt

and its lawyer is prohibited and documents in the lawyers possession cannot be seized.

As t aw xprssy rfrs to matras kpt by t awyr, t s ss ar wtr ts

prvg s appab f t doumntaton s aso n t nts posssson.

The FNE has not given guidance as to how it will use these new powers, more

specically on the issue of legal privilege, and any precedent on the matter is absent.

What is clear is that privilege does not apply when the lawyer is also being investigated

for possb voaton of t anttrust rus.

XII SETTLEMENT PROCEDURES

DL 211/1973 explicitly allows settlement of an antitrust case provided that the

sttmnt dos not voat omptton aw. T sttmnt must b approvd by t

TDlc unss t rstrts omptton. Tr ar svra prdnts rgardng sttmnts

approvd by t TDlc16 and, n fat, t Suprm court as nouragd parts to

16 SAES Gener SA v. Electroandina SA, Case No. 66-05, TDLC, Decision No. 36, 31 January

2006;AGIP v. D&S and Cencosud, Case No. 104-2006, TDLC, Decision of 16 January 2007;

FNE v. D&S and Cencosud, Case No. 101-2006, Decision of 17 January 2007; FNE v. CCU,

Case No. 153-2008. TDLC, Decision of 23 July 2008.


20/22

Chile

39

ra sttmnts.17 Trd parts an ony ang su sttmnt bfor t Suprm

court on t bass of rstrton of omptton.

T TDlc as rnty approvd two sttmnts nvovng prvat parts. T

rst refers to a lawsuit led by Codelco Chile the major state-owned mining company

aganst Trqum, a mnor port oprator. T as startd wn codo agd timposition of abusive clauses by Terquim. Terquim, in turn, led a lawsuit against a third

party. Ts as was sttd n Dmbr 2009.18

The second settlement refers to a complaint led by the Chilean subsidiary of

Mxan ompany Amra Mv aganst Tfna n t markt for ong-dstan pon

as. Aordng to t pantff, Tfna ad ommttd svra anttrust voatons

su as prdatory prng, pr dsrmnaton, ross-subsdsng, abusv prng, margn

squeeze and illegal vertical integration. In January, 2010 the TDLC eventually approved the

sttmnt btwn bot parts, aftr avng prvousy found tat t orgna drafts of

su sttmnt mgt av produd ant-ompttv ffts; bot parts wr ordrd

to submt a nw sttmnt, w was approvd.19

Finally, it can be noted that private parties can settle a case with the FNE before

the latter les a complaint before the TDLC; those settlements must, however, be

approvd by t TDlc. To dat, tr av bn two sttmnts of ts knd, on

nvovng a rgona arport and t otr nvovng t trd-argst suprmarkt an

(non-ompt auss).

XIII ARBITRATION

T ony ourts wt powr to da wt omptton ass ar t TDlc and, on appa,

t Suprm court. Anttrust aw s a mattr of pub poy undr can aw and an

therefore not be enforced by arbitrators. Any clause submitting an antitrust conict

to arbtraton s dmd nu and vod. howvr, t s ompty awfu to submt v

ams arsng from anttrust voatons to arbtraton. Known prdnts ar sar,

party gvn t prvat natur of su prodngs.

XIV INDEMNIFICATION AND CONTRIBUTION

Chilean law does not limit the right to seek damage indemnication to the extent that

t dfndant s ab for an anttrust voaton. if su a voaton s ommttd by two

or mor parts, a t dfndants ar jonty ab aordng to t gnra rus of v

aw. T man pont of ssu n t v am s to quantfy t damags and dtrmn

wtr tos damags an b drty attrbutd to t anttrust voaton.

17 FNE v. D&S and Cencosud, Case No. 2998-2008. Supreme Court, Decision of 24 July 2008.

18 Information available at www.tdlc.cl/Portal.Base/Web/VerContenido.aspx?ID=1919.

19 Information available at www.tdlc.cl/Portal.Base/Web/VerContenido.aspx?ID=1812.


21/22

Chile

40

XV FUTURE DEVELOPMENTS AND OUTLOOK

c as rnty jond t OecD and t mprovmnt of anttrust nformnt,

spay aganst arts, was on of t ommtmnts undrtakn by t can

govrnmnt. T ntroduton of nny programms was part of su ommtmntsand t rnt awsut aganst t manufaturrs of rfrgraton omprssors sms to

be one of the rst visible consequences of this process. We can expect more interaction

and onvrgn btwn can autorts and forgn anttrust nforrs, spay

n t dtton and prosuton of arts. Ts w probaby ad to an nrasd v

of private litigation in the long term, especially in terms of damages claims led by

arts vtms.


22/22

About the Authors

Paulo Montt

FerradaNehme

Paulo Montt is a qualied lawyer in Chile and member of the Chilean Bar. He is a

graduate at University of Chile (1999) and University College London (LLM, 2008). He

is a partner at FerradaNehme and the head of the litigation department. He has broad

experience in competition, civil and commercial litigation and arbitration. He is also a

lecturer in civil law at University of Chile and has published several academic works on

competition law. He formerly worked at Claro & Ca (1997 to 2006).

www.lpglobal.com.br

BenjaMn Mordoj

FerradaNehme

Benjamn Mordoj is a qualied lawyer in Chile and member of the Chilean Bar. He is a

graduate at University of Chile (2005), with postgraduate studies in administrative and

economic law at the Catholic University of Chile (2008). He has been an associate at

FerradaNehme since 2007. His main practice focuses on antitrust, economic regulation

(telecommunications, ports, gas and shery) and litigation. Mr Mordoj is an assistant

teacher of economic law, and law and economics at the University of Chile. He was

previously a law clerk at Carey & Ca (2003 to 2005).

FerradanehMe

Isidora Goyenechea, #3477, 5th oor

Las Condes

Santiago

Chile

Tel: 56 2 652 9000

Fax: 56 2 652 9001

[email protected]