CHILE Trends and Developments Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
Sky Airline/Abra Group In May 2026, the FNE conditionally cleared the acqui - sition of control of Sky Airline – a local domestic and international carrier – by Abra Group, an internation - al airline consortium. The FNE concluded that the transaction did not substantially lessen competition on the routes where the parties overlapped; however, the agency did consider that the merger agreement contained non-compete and non-solicitation clauses whose terms were not in line with the proportionality criteria consistently applied by the FNE to ancillary restraints (essentially similar to the European Com - mission’s standards). The parties offered as a remedy the amendment of said clauses, limiting their dura - tion – reducing it to 24 months – and their material scope – limiting the non-solicitation clause to Sky’s key employees only (instead of all employees). This is consistent with several decisions in which the FNE has conditioned a transaction’s clearance upon the adjustment of non-compete and non-solicitation clauses to fit proportionality criteria (eg, OnNet Fibra/ Entel, MOL/Fairfield Chemical Carriers Legrand/Tekni - ca/Enersafe, Merck/Elanco and Ohio National/Zurich Chile, among others). Through a practical lens, these developments sug - gest that parties contemplating transactions that may raise competition concerns may benefit from early and constructive engagement with the FNE. This is par - ticularly true in cases where such risks are capable of being addressed through proportionate and suffi - cient remedial solutions. The FNE’s current approach reveals openness to addressing concerns through negotiated solutions at an earlier stage in the merger proceedings. And despite the FNE’s declared pref - erence for structural remedies (when appropriate), recent conditional clearances in fact range from full structural divestitures to behavioural commitments and adjustments to ancillary restraints. This variety indicates that in practice the FNE tailors its interven - tions by conditioning transactions upon remedies that effectively and proportionately address the specific concerns raised by each transaction, rather than by strictly adhering to its declared preference for one type of remedy over another. In essence, the trend towards increased Phase I remedial solutions offers a pathway that balances effective competition enforce - ment with procedural efficiency, while reinforcing the
and the exchange of commercially sensitive infor - mation among competitors. The parties submitted remedies designed to restrict informational flows and diminish co-ordination risks, alongside introducing reporting obligations to the FNE and designing fire - walls that involved commitments and prohibitions for the controlling shareholder, the non-controlling share - holders, the parties and the joint venture. One particularly noteworthy remedy consisted of the expansion of the scope of the interlocking provision, which prohibits the same individual from serving as a director or important executive in competing compa - nies, inasmuch as each business group passes certain turnover thresholds. The remedy proposed extended the legal interlocking directorates/relevant executives prohibition set in Chilean law by including other signifi - cant job positions (such as any employee or consult - ant involved within the last year in the lithium market). The transaction was conditionally cleared by the FNE in Phase I. Sodexo/Mediterránea In February 2026, the FNE cleared the acquisition of control of Mediterránea by Sodexo. Both compa - nies competed in the institutional catering services and facilities management sector. The FNE qualified the parties as close competitors, concluding that the acquisition could raise both unilateral and horizon - tal concerns due to the parties’ market positions and the entry barriers the market exhibited. Nevertheless, the FNE cleared the transaction in Phase I subject, among other remedies, to the divestment by Sodexo of Mediterránea’s business in Chile, transferring it to a suitable buyer to be approved by the FNE. Until global closing, Mediterránea committed to operate independently of Sodexo, with safeguards to prevent the exchange of commercially sensitive information. In May 2026, the FNE cleared Origen Group SpA as an acceptable buyer of the divested business. The divestment of the Mediterránea business in Chile is the fourth time on which the FNE has cleared a concentration in Phase I subject to a divestment rem - edy. The relevant precedents are the Dow Chemical/ Dupont, Bayer/Monsanto and Linde/Praxair con - centrations, which were also conditionally cleared in Phase I at the beginning of the regime.
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