CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
As regards class actions based on the impact of anti-competitive conduct on the collective interest of consumers, the question arises as to whether com - pensation is appropriate when the infringer does not sell its products or services directly to final consum - ers. This is because, as mentioned, the definition of “collective interest” requires the existence of a group of consumers related to the supplier by a contractual link. Therefore, if the infringer participates in the sup - ply chain, but does not offer its products or services to the final consumer, then there is no contractual rela - tionship between the former and the latter. This would therefore exclude indirect purchasers as subjects of compensation through a class action. This criterion was recently confirmed by the Supreme Court (2024) in a case brought under the old law, which gave juris - diction to civil courts to resolve such cases ( SERNAC v SCA ). However, some scholars assert that indirect consum - ers should indeed be compensated for damages aris - ing from violations of competition laws. In this sense, they argue that the principle of full reparation inher - ently includes the duty to compensate indirect con - sumers, and that DL 211 provides that compensa - tion for damages shall include “all damages” caused during the period in which the infringement lasted. Therefore, those injured consumers who are indirect purchasers should be able to file not only individual but also class actions. It remains to be seen how the TDLC will resolve the class actions requesting compensation for indirect purchasers currently being processed, since there has been no ruling from this court on the matter, and whether the Supreme Court will agree with the TDLC decision or not. 4.4 Class Certification Under Chilean law, there is no specific procedure for class certification in class actions. Instead, claims are subject to an admissibility test, where they are evalu - ated to ensure they meet legal requirements. These requirements include being filed by parties with legal standing ‒ such as SERNAC, consumer associations, or a group of at least 50 consumers ‒ and adhering to the formal requirements applicable to all lawsuits.
At the end of the trial, the court must include in its judgment the identification of the group of affected consumers (all those who are affected in the same way by the damage caused), whether it is divided into subgroups, and the manner and period in which the interested parties must exercise their rights. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law The TDLC holds nationwide jurisdiction over anti - trust matters. Therefore, if any anti-competitive act is conducted within or has effects in Chile, the TDLC will have the authority to address and adjudicate the issue, applying Chilean law accordingly. Under Chilean law, private parties are not mandated to disclose all documents related to the case at a specif - ic stage, and there is no formal discovery process akin to those found in other jurisdictions. Instead, Article 349 of the Civil Procedure Code provides that par - ties may request the “production of documents” as an evidentiary measure. Such requests can be made for documents held by the opposing party or third parties, provided that the documents are directly relevant to the issue in dispute. The TDLC will admit such requests “with notice” if they meet the specified criteria. The party affected by the request has three days to object to the disclosure, citing reasons such as that the document is not in their possession or that it is not relevant to the contested matter. 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure If the request for document production is granted, a hearing will be scheduled to allow the parties to pre - sent the content of the disclosed documents, demon - strate their compliance with the request, and indicate if certain documents are not in their possession. During this hearing, parties may also request that documents containing commercially sensitive infor - mation be kept confidential to protect the competi -
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