CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
Follow-on actions entail an additional requirement. Specifically, Article 30 of DL 211 states that such claims must be based on a prior decision by the TDLC or the Supreme Court (in the event of an appeal) that finds one or more parties liable for engaging in anti- competitive conduct. There are additional requirements in the case of class actions, as outlined in 4.1 Statutory Basis. 2.2 Courts Specialised Courts In Chile, antitrust cases fall under the exclusive jurisdiction of the TDLC. This is a specialised court responsible for hearing and resolving cases that may constitute violations of DL 211. It is a collegial court with jurisdiction over the entire territory of the Repub - lic. The TDLC is composed of five members: three lawyers and two economists who are experts in com - petition matters. The president and two members are appointed by the President of the Republic, while the remaining two are appointed by the Council of the Central Bank. The Supreme Court of Chile ‒ specifically, the Third Chamber, usually composed of five magistrates ‒ serves as the superior authority over the TDLC and has the power to resolve appeals filed on antitrust cases, as well as to revoke or modify the TDLC’s deci - sions. As noted in 1.1 Current Framework for Private Anti - trust Litigation , since 2016, follow-on actions claim - ing damages must also be filed before the TDLC as a subsequent procedure after a conviction for an anti- competitive infringement. The FNE is the national competition authority respon - sible for defending and promoting competition in Chile. In this capacity, the FNE represents the national public interest, investigating and prosecuting any anti- competitive behaviour, and seeking to sanction the responsible entities. As public prosecutor (enforce - ment agency) the FNE lacks the authority to adjudicate its own disputes; rather, it must pursue enforcement 2.3 Impact of Competition Authorities Binding Nature of National Competition Authorities’ Decisions
actions before the TDLC. Hence, the decisions of the FNE are not binding on the courts. Furthermore, any antitrust investigation or litigation concluded by out- of-court settlements agreed by the FNE must receive approval from the TDLC, as mandated by Article 39 (ñ) of DL 211. This ensures that such settlements adhere to the principles of free competition. Regarding decisions issued by the TDLC in antitrust infringement cases, these have full res judicata effect. Once a decision is final (either because there are no further appeals against it or because the appeals have already been resolved by the Supreme Court), the same facts cannot be revisited, under the principle of non bis in idem. Decisions by the TDLC convicting antitrust infringe - ments serve as the foundation for subsequent dam - age claims pursued as follow-on procedures. It is crucial to note that such follow-on litigation does not entail a re-examination of the factual basis established in the antitrust decision but rather focuses exclusively on the assessment of damages. Consequently, the TDLC must base its ruling on the facts established in the judgment that has already convicted the defendant for the antitrust infringement. Therefore, the TDLC’s antitrust decision is binding both on the parties and on itself, precluding contra - dictions with established facts and laying the factual basis for damages that may be awarded. Decisions by foreign national competition authorities have no binding effect in Chile; however, the TDLC does consider comparative case law when making its decisions, especially those of jurisdictions with an advanced development in competition matters, such as the United States and the European Union. Role of Civil Courts In Chile, antitrust proceedings cannot be brought before civil courts, because they are of the exclu - sive jurisdiction of the TDLC. The only exception are actions for acts of unfair competition, which can be brought before the civil courts, unless it is alleged that such acts are intended to achieve, maintain or increase a dominant position, in which case they fall
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