CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
claimed that the collusion ‒ preceded by an aggressive price war between CMPC and SCA ‒ created adverse market conditions that led to a drop in sales, the loss of assets, and foregone profits, all of which occurred before the collusion became publicly known through the FNE’s 2015 complaint. The TDLC dismissed the claim, arguing that the defendants’ actions that could have contributed to Cerrillos’ insolvency were related to the price war, and since this had not been sanc - tioned as anti-competitive conduct, no compensation was due. Regarding the collusive agreement, the court found that there was insufficient evidence that this was the cause of the plaintiff’s insolvency, and that Cerrillos may even have benefited from it, considering that Cerrillos experienced a recovery in sales during the collusive period. The Supreme Court overturned the TDLC’s ruling and upheld the claim. It found that the statute of limita - tions had not expired and that a causal link did exist between the cartel and part of the damage suffered by Cerrillos, even while acknowledging the presence of other contributing factors. The Court concluded that the collusion created market instability, negatively affecting smaller players like the plaintiff, particularly through the loss of key clients and disruption of nor - mal business operations. As a result, it awarded com - pensation equivalent to 10% of the total damages. This Supreme Court ruling has been heavily criticised by law experts, as it establishes very loose criteria for attributing causality between conduct and damages, resorting to a proportional causality model, which would allow for a “prudential” reduction in compen - sation in the absence of sufficient evidence of the required causal link. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Chilean antitrust legal regulation is codified in DL 211. Article 20 of this Law sets forth the procedure for filing claims concerning acts or behaviours that undermine competition and allows not only the FNE but also any private individual or legal entity to bring a case before the TDLC. The Law provides, however, that if a claim
is brought by a private party, it must be immediately notified to the FNE to grant the latter the opportu - nity to take part in the TDLC proceeding. Because the FNE has a duty to represent the general interest of the community in antitrust matters, it will take part in proceedings in which it considers that said interest may be compromised. As a requirement, private individuals or legal entities must demonstrate a “legitimate interest” to file a com - plaint before the TDLC. Chilean case law has estab - lished that this “legitimate interest” includes those who are or could reasonably be affected by the alleged anti-competitive conduct. It has also determined that this includes all persons that participate in the mar - kets impacted by the conduct in question ‒ whether as competitors, suppliers or customers ‒ or those who could potentially participate in these markets if it were not for the alleged anti-competitive conduct. Moreover, to be considered valid, a claim must present a comprehensive and detailed account of the facts, actions or agreements that constitute a violation of DL 211, and must specify the market or markets affected by the alleged anti-competitive behaviour. Lastly, claims must also comply with the general requirements for all lawsuits established by the Civil Procedure Code, including: • designation of the court before which the claim is filed; • the name, address and profession or occupation of the plaintiff and their representatives, the nature of the representation, and an electronic means of notification for the attorney and judicial representa - tive if not previously designated; • the name, address and profession or occupation of the defendant; • a clear exposition of the facts and legal grounds supporting the claim; and • a precise and clear statement of the relief sought from the court. Thus, a private litigation may be initiated for any type of anti-competitive act or conduct, eg, abuse of domi - nance, predatory or unfair competitive practices and interlocking.
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