CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
under the TDLC’s jurisdiction. In these proceedings before civil courts for unfair competition claims, the FNE and the TDLC play no role. 2.4 Proof The Burden of Proof Allocation The fundamental rule is that the burden of proving the alleged infringement rests with the plaintiff, be it the FNE or a private party. The plaintiff shall demonstrate different elements depending on the type of infringement involved. For instance, in cases involving hard-core cartels, follow - ing a 2016 reform, the plaintiff must only prove the existence of the infringement, eg, an agreement to fix prices between competitors, but not its anti-compet - itive effects (although the effects may be relevant for other aspects, such as the determination of the fine). In turn, other types of antitrust cases additionally require the plaintiff to demonstrate not only the con - duct itself but also the anti-competitive effects aris - ing from it and/or the market power of the alleged infringer. Conversely, the defendant will aim to provide evi - dence that counteracts the plaintiff’s allegations, focusing primarily on demonstrating the absence of any alleged wrongdoing, challenging the plaintiff’s standing, claiming that the conduct is justified and/or asserting the expiration of the right to bring a claim. Lastly, regarding follow-on damage claims before the TDLC, it has been ruled that the plaintiff only needs to prove the damages suffered and their causal con - nection to the anti-competitive conduct, as all facts related to this conduct are already established in the prior decision that serves as the basis for the dam - ages claim. Standard of Proof In accordance with established national case law, the standard of proof in Chilean competition law is “clear and convincing evidence”. This standard represents an intermediate threshold between the standards of “preponderance of the evidence” and “beyond any reasonable doubt”. Doctrine has understood that this standard requires a level of conviction around 60‒65%
probability, indicating that the evidence presented must be highly and substantially more likely to be true than untrue. By contrast, with regard to damage claims, the rel - evant standard of proof established by case law is that of “reasonable probability” or “preponderance of evidence”, which is based on a rational decision made by a court that a particular hypothesis has a higher probability of occurring than other scenarios. Legal Presumptions There are no legal presumptions applicable to anti - trust cases. However, some legal scholars propose that the “per se” rule outlined in Article 3 (a) of DL 211, which defines conduct deemed to constitute “hard- core cartels” (ie, concerted agreements or practices among competitors, and those which consist of fixing sale or purchase prices, limiting output, assignment of market zones or quotas, affecting the outcome of tender processes), effectively operates as a presump - tion. This is because it assumes the anti-competitive effects of such conduct without requiring them to be demonstrated in court. The same applies to Article 3 (d), which establishes the prohibition of horizon - tal interlocking directorates, penalising the simulta - neous participation of the same person as a board member or key executive in two or more “competing companies,” provided that the annual revenues of the corporate group to which each competing company belongs exceeds UF100,000 (approximately USD4.1 million). According to the first TDLC rulings on this matter, recently issued in April and June 2025, this infringement would be an unlawful act per se, there - fore not requiring proof of anti-competitive effects. As these rulings are currently being reviewed by the Supreme Court, it remains to be seen whether the highest court will uphold the TDLC’s decision on this matter. 2.5 Pass-On Defence Regarding damage claims, the “pass-on” defence is not explicitly provided by Chilean law. Still, nothing prevents defendants from raising it when disputing the causal link between the anti-competitive conduct and the alleged damages. This is justified by the fact that, in Chile, unjust enrichment is not protected, so
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