CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
lated in paragraph 3 of Article 39 (a) of DL 211. This provision authorises the FNE to, either on its own ini - tiative or upon request by an interested party, declare certain parts of the case documents as confidential if their disclosure could substantially impact the com - petitive position of the document’s owner or compro - mise the effectiveness of the FNE’s investigations. In this case, the TDLC will request the FNE to produce a public version of the documents, where all confidential information will be redacted. During the trial, witness evidence must be presented orally. To present oral testimony, the parties must sub - mit a list of witnesses within the first five days of the evidentiary stage, after which the TDLC will summon a hearing. Witnesses are compelled to attend, under penalty of arrest or fine if they fail to attend the second time that they are legally summoned. At the hearing, witnesses will be questioned and cross-examined about the specific point of proof for which they were summoned to testify. Additionally, the judge may also ask questions. 7. Witness and Expert Opinions 7.1 Witness Procedure In theory, a witness’s statement could be submitted in writing as documentary evidence, but this is not usual practice, because oral testimony has greater power of conviction, as the witness can be questioned about their impartiality and cross-examination is possible. 7.2 Expert Witness Role and Procedure The parties may present expert witness evidence by submitting expert reports or requesting a hearing for their verbal testimony. The common practice in antitrust litigation is that the parties submit technical or economic reports prepared by experts in certain subjects, such as the structure and characteristics of the relevant market, or the assessment of damages. Once the report has been submitted, the TDLC, either at the request of the party that submitted the report or on its own initiative, may set a special hearing for
the experts to testify about the content of the report. At the hearing, the parties and the judge may also ask questions, which must refer to points addressed in the report. The decision of the TDLC to set a hearing or not is discretionary, but it has been the common practice in recent cases. If a hearing is scheduled, it is not necessary for experts to state their position in advance on the matters dis - cussed in the trial or in the report. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages Although Article 30 of DL 211 establishes the proce - dural rules to be followed in damages claims, it does not address the issue of damages assessment. How - ever, it is an established practice to calculate dam - ages based on a counterfactual scenario, comparing certain competitive conditions (eg, prices, quality of the goods and services, and production rates and capacity) in the market involved in the anti-competitive conduct, during the period when it took place, with an alternative scenario not affected by that conduct (eg, a different period or the same period but for different products/services), while also taking in consideration external factors that may have affected competition in the market (eg, public policies, new regulations and economic situation of the country). Concerning the type of damages that may be claimed for compensation, Chilean legislation refers to “all the damages caused”, which involves both economic and non-economic damages. In the case of class actions, as of 2018, the law explicitly provides for the possibil - ity of claiming collective moral damages. On the one hand, economic damages include actual damage, which refers to the economic losses actually suffered by the parties (ie, the costs in which they had to incur to fix the damages caused). On the other hand, economic damages also include the loss of profits, which refers to the income that the affected parties
40 CHAMBERS.COM
Powered by FlippingBook