CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
transaction unconditionally, clearing it subject to rem - edies or prohibiting the transaction. The decision is formally notified to the parties via email. The FNE also issues a report that lays down the factual background, competitive assessment and substantive reasoning supporting the decision. However, recently transactions reviewed under the no-overlap simpli - fied procedure have been typically resolved through a clearance decision only, without a substantive report. The decision – and, where applicable, the supporting report – are published on the FNE’s website after the parties have had an opportunity to request confidenti - ality redactions of certain commercially sensitive data. The published versions therefore exclude information that has been granted confidential treatment. In transactions cleared subject to remedies, the FNE also publishes the final remedy proposal submitted by the parties, together with its annexes, as an appendix to the clearance report. As a result, a significant por - tion of the authority’s reasoning and the commitments accepted in connection with the clearance decision are generally available to the public. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions To date, the FNE has not prohibited any strictly for - eign-to-foreign transaction under Chile’s mandatory merger control regime. However, the FNE has reviewed and accepted rem - edies in several major global transactions in the past, including Dow Chemical/DuPont, AT&T/Time Warn - er, Maersk/Hamburg Süd, Bayer/Monsanto, Linde/ Praxair, 21st Century Fox/Disney, Fiat Chrysler/ Peugeot, EssilorLuxottica/GrandVision and, more recently, Fuso/Hino and Sodexo/Mediterránea. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications A clearance decision generally covers ancillary restraints that are directly related to and necessary
for the implementation of the transaction, such as cer - tain non-compete, non-solicitation or similar arrange - ments. Consistent with the approach applied by the Euro - pean Commission, the FNE assesses whether the restraint is directly related to the transaction and nec - essary for its implementation, considering its material scope, duration and geographic coverage. Where the restraint satisfies these criteria, it is considered part of the transaction and is covered by the clearance decision. By contrast, arrangements that are not directly related to, or necessary for, the implementation of the trans - action fall outside the scope of merger review and are not approved through the clearance decision. Such arrangements must be self-assessed by the parties under the general provisions of DL 211 and may be challenged by the competition authorities or third par - ties if they are considered anti-competitive. There is no independent notification procedure for ancillary restraints under the Chilean merger control regime. However, parties may seek legal certainty by submitting a non-contentious consultation to the TDLC regarding a particular act, agreement or arrangement. In practice, this mechanism is rarely used for ancillary restraints as it is a lengthy and public proceeding that may involve the participation of interested third parties and is subject to review by the Supreme Court. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties may be sent RFIs by the FNE through - out the course of the merger review, which they are obligated to answer, as explained in 3.9 Requests for Information During the Review Process . In addition, the FNE may request third parties to pro - vide their views on whether the proposed transaction may raise competitive risks or affect the market. Additionally, during Phase II, any third party with a legitimate interest in the proceedings may voluntar -
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